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'  ELEMENTS 

OF 

WESTERN  WATER 
LAW- 


(REVISED) 


BY 


A.  E.  CHANDLER 

I* 

Irrigation  and  Water  Right  Specialist  ;  President  of  California 

State    Water    Commission;     President    of 

California  Irrigation  Board 


TECHNICAL  PUBLISHING  CO. 

SAN  FRANCISCO 

1918 


** 


Copyright  1912-1918 

Technical  Publishing 

Company 


PREFACE  TO  THE  SECOND  EDITION 

Over  five  years  have  elapsed  since  the  text  of  the  first 
edition  was  prepared  as  separate  articles  for  the  Journal  of 
Electricity.  During  that  period,  the  movement  for  legislation 
providing  a  rational  control  of  water  rights  has  notably 
advanced,  and  the  courts  of  last  resort,  in  many  cases  dealing 
with  water  rights,  have  either  established  new  principles  or 
strengthened  the  old.  In  this  edition,  an  attempt  has  been 
made  to  revise  the  text  so  that  the  changes  due  to  new  legis- 
lation and  judicial  opinions  may  be  duly  emphasized. 

The  idea  of  the  lectures,  as  originally  given  to  engineer- 
ing and  agricultural  students  in  the  University  of  California, 
was  to  so  present  the  "elements"  as  to  acquaint  the  students 
with  the  work  and  problems  found  in  a  state  engineer's  office, 
in  dealing  with  the  appropriation  of  water  for  irrigation  and 
other  useful  purposes.  The  aim  of  this  revision  is  to  serve  the 
same  purpose  by  bringing  the  text  to  date. 

The  writer  wishes  to  express  his  appreciation  of  the  very 
material  assistance  given  him  by  Professor  Sydney  T.  Hard- 
ing, of  the  University  of  California,  in  preparing  the  revision 
for  publication. 

San  Francisco,  January  15,  1918. 


CONTENTS 

CHAPTER  I 

Early  Development  of  the  Doctrine  of  Appropriation 1 

CHAPTER  II 

Riparian  Rights  in  The  Western  States 9 

Statutory  Limitation  of  Riparian  Rights 17 

Lateral  Limits   19 

Riparian  Right  Restricted  to  Riparian  Land 21 

Reasonable  Use  Among  Riparian  Owners ,_  22 

Riparian  Rights  to  Navigable  Waters 23 

Summary  of  Principles    23 

CHAPTER  III 

Law  of  Underground  Waters 25 

Statutes  Regulating  Artesian  Wells 31 

Contrast  of  the  California  Rules  of  Percolating  Waters  and 

of  Riparian   Rights    ,. .  32 

CHAPTER  IV 

The   Doctrine   of  Appropriation '.  34 

Right    of    Access  —  Appropriations  Not  Restricted  to  Public 

Lands    34 

Waters  Open  to  Appropriation  35 

Navigable  Waters \ 37 

Waters   of   Lakes 37 

Waters  in  Artificial  Channels  and  Surface  Waters 38 

Waste  Water   ,. ., 38 

Proceedings  to  Effect  Appropriations 39 

Incomplete  Appropriations , 41 

The  Measure  of  the  Right 42 

Principles  of  Prior  Appropriation 43 

CHAPTER  V 

Loss  of  Water  Rights ' 45 

Abandonment  and  Forfeiture   45 

Adverse  Use  or  Prescription 48 

Estoppel 50 

Rights  of  Way  by  Prescription 51 

CHAPTER  VI 

Water   Right   Legislation    52 

Colorado 52 

Wyoming   ,, » 56 

Nebraska '59 

Idaho 61 

Utah    65 

Nevada  66 

<ew  Mexico,  North  Dakota,  Oklahoma,  and  South  Dakota 68 

ilifornia     70 

Acquirement  of  Rights 70 

Adjudication  of  Rights   73 

Distribution  of  Water  73 

Texas    74 

Washington 75 

Kansas : 75 

Review  of  Legislation — 

Adjudication  of  Rights   76 

Acquirement  of  Rights   80 

Distribution  of  Water  82 

Conclusion  .  83 


CHAPTER  VII 

Water   Rights   on    Interstate   Streams 84 

Kansas  v.  Colorado 86 

Legislation  Regarding  Interstate   Streams 90 

Summary 94 

CHAPTER  VIII 

Rights  of  Way  Over  Public  Lands  for  Ditches  and  Reservoirs 96 

Act  of  March  3,  1891    98 

Act  of  May  11,  1898    99 

Act  of  February  1,   1905 100 

Act  of  February  15,  1901  100 

Comments  on  Departmental  Regulations,  Act  of  February  15, 

1901   , 100 

Indeterminate  Licenses 101 

Regulations  of  Rates  and  Service 102 

The  .Annual  Charge   103 

Water  Powers  on  Navigable  Streams 107 

Summary  107 

CHAPTER  IX 

Commercial  and  Co-operative  Irrigation   Enterprises 109 

First  Group  of  Commercial  Enterprises Ill 

Second  Group  of  Commercial  Enterprises Ill 

Third  Group  of  Commercial  Enterprises 112 

Co-operative  or  Mutual  Enterprises 112 

The  Regulation  of  Commercial  Enterprises 114 

Who  Owns  the  Water  Right 117 

The  Future  of  Commercial  Enterprises 119 

CHAPTER  X 

The  Desert  Land  Act  and  the  Carey  Act 121 

The  Carey  Act 123 

State  Legislation    124 

Development  Under  the  Carey  Act 126 

Colorado,  Idaho 126 

Montana,  Nevada,  Oregon,  Utah,  Wyoming 127 

CHAPTER  XI 

The   Reclamation  Act    128 

The  Reclamation  Act  of  June  17,  1902 128 

Act  of  August  9,  1912 132 

Reclamation  Extension  Act  of  August  13,  1914 132 

Judicial  Construction  of  Reclamation  Act 134 

Development  Under  the  Reclamation  Act , 135 

CHAPTER  XII 

Irrigation    Districts    138 

The  California  Irrigation  District  ACL 138 

Points  of  Difference  in  Irrigation  District  Acts 140 

The  Constitutionality  of  Irrigation  District  Acts 142 

Early  Irrigation  Districts  in  California 142 

Operations  Under  Irrigation  District  Acts 143 

The  California  Irrigation  Act 145 

Irrigation  Districts  on  Reclamation  Service  Projects 146 

Congressional  Act  of  August  11,  1916 148 

The  Future  of  Irrigation  Districts 149 

CHAPTER  XIII 
The  Desideratum  in  Legislation  Regarding  the  Public  Waters....   151 

Riparian   Rights    151 

Percolating  Waters   154 

Irrigation  Versus  Navigation   155 

Capitalization  of  Water  Rights   155 

Legislation  Regarding  Appropriations 156 


ELEMENTS  OF  WESTERN 
WATER  LAW 

CHAPTER  I 

EARLY  DEVELOPMENT  OF  THE  DOCTRINE  OF 
APPROPRIATION 

The  doctrine  of  appropriation  is  one  recognized  in  the  law 
of  waters  as  governing  a  class  of  rights  markedly  distinct  from 
the  riparian  rights  of  the  common  law.  It  grew  out  of  the 
occupancy  of  the  public  domain  during  the  mining  period  and 
is  not  accepted  outside  of  the  western  mining  and  irrigation 
states.  Although  of  so  recent  origin  as  far  as  our  own  people 
are  concerned,  the  following  quotation  from  Clough  v.  Wing 
(2  Ariz.  371)  shows  its  long  standing  in  America: 

And  the  right  to  appropriate  and  use  water  for  iirigation  has  been 
recognized  longer  than  history,  and  since  earlier  times  than  tradition. 
Evidences  of  it  are  to  be  found  all  over  Arizona  and  New  Mexico  in 
the  ancient  canals  of  a  prehistoric  people,  who  once  composed  a  dense 
and  highly  civilized  population.  These  canals  are  now  plainly  marked, 
and  some  modern  canals  follow  the  track  and  use  the  work  of  this 
forgotten  people.  The  native  tribes,  the  Pimas  and  Papagos  and  other 
pueblo  Indians,  'now,  as  they  for  generations  have  done,  appropriate 
and  use  the  waters  of  these  streams  to  husbandry,  and  sacredly  recog- 
nize the  rights  acquired  by  long  use,  and  no  right  of  a  riparian  owner 
is  thought  of.  The  only  right  in  water  is  found  in  the  right  to  conduct 
the  same  through  their  canals  to  their  fields,  there  to  use  the  same  in 
irrigation.  The  same  was  found  to  prevail  in  Mexico  among  the 
Aztecs,  the  Toltecs,  the  Vaquis,  and  other  tribes  at  the  time  of  the 
conquest,  and  remained  undisturbed  in  the  jurisprudence  of  that 
country  until  now.  Clough  v.  Wing,  17  Pac.  453. 

As  was  to  be  expected  from  the  great  rush  to  the  gold 
fields  following  the  discovery  in  January,  1848,  legal  contro- 
versies early  arose  not  only  in  regard  to  the  mining  claims 
but  also  in  regard  to  the  ditches  and  water  rights  used  in 
connection  therewith.  One  of  the  very  early  cases  often 


2''"'  ELEMENTS     CF    WESTERN     WATER     LAW 

quoted  is  Irwin  v.  Phillips  (5  Cal.  140),  decided  in  1855,  and 
the  following  extract  from  the  opinion  clearly  shows  the  neces- 
sity for  the  doctrine  of  prior  appropriation : 

Courts  are  bound  to  take  notice  of  the  political  and  social  condi- 
tions of  the  country  which  they  judicially  rule.  In  this  state  the 
larger  part  of  the  territory  consists  of  mineral  lands,  nearly  the  whole 
of  which  are  the  property  of  the  public.  No  right  or  intent  of  disposi- 
tion of  these  lands  has  been  shown  either  by  the  United  States  or  the 
state  governments,  and  with  the  exception  of  certain  state  regulations, 
very  limited  in  their  character,  a  system  has  been  permitted  to  grow 
up  by  the  voluntary  .  .  .  action  and  assent  of  the  population,  whose 
free  and  unrestrained  .  .  .  occupation  of  the  mineral  region,  has  been 
tacitly  assented  to  by  the  one  government,  and  heartily  encouraged  by 
the  expressed  legislative  policy  of  the  other.  If  there  are,  as  must  be 
admitted,  many  things  connected  with  this  system,  which  are  crude 
and  undigested,  and  subject  to  fluctuation  and  dispute,  there  are  still 
some  which  a  universal  sense  of  necessity  and  propriety  have  so  firmly 
fixed  as  that  they  have  come  to  be  looked  upon  as  having  the  force  and 
effect  of  res  judicata.  Among  these  the  most  important  are  the  rights 
of  miners  to  be  protected  in  the  possession  of  their  selected  localities, 
and  the  rights  of  those  who,  by  prior  appropriation,  have  taken  the 
waters  from  their  natural  beds,  and  by  costly  artificial  works  have 
conducted  them  for  miles  over  mountains  and  ravines,  to  supply  the 
necessities  of  gold  diggers,  and  without  which  the  most  important 
interests  of  the  mineral  region  would  remain  without  development. 
So  fully  recognized  have  become  those  rights,  that,  without  any  specific 
legislation  conferring  or  confirming  them,  they  are  alluded  to  and 
spoken  of  in,  various  acts  of  the  legislature  in  the  same  manner  as  if 
they  were  rights  which  had  been  vested  by  the  most  distinct  expression 
of  the  will  of  the  lawmakers.  .  .  .  This  simply  goes  to  prove  what 
is  the  purpose  of  the  argument,  that  however  much  the  policy  of  the 
state,  as  indicated  by  her  legislation,  has  conferred  the  privilege  to 
work  the  mines,  it  has  equally  conferred  the  right  to  divert  the  streams 
from  their  natural  channels,  and  as  these  two  rights  stand  upon  an 
equal  footing,  when  they  conflict,  they  must  be  decided  by  the  fact  of 
priority,  upon  the  maxim  of  equity,  "Qui  prior  est  in  tempore,  potior 
est  in  jure." 

Elsewhere  in  the  above  mentioned  opinion  it  is  stated : 
It  must  be  premised  that  it  is  admitted  on  all  sides  that  the 
mining  claims  in  controversy,  and  the  lands  through  which  the  stream 
runs  and  through  which  the  canal  passes,  are  a  part  of    the  public 
domain,  to  which  there  is  no  claim  of  private  proprietorship. 

The  miners  and  others  were  but  trespassers  on  the  public 
domain  as  Congress  had  passed  no  legislation  recognizing 
their  claims.  It  is  not  surprising  that  a  movement  gained 
weight  in  the  eastern  states  to  have  the  government  assert  its 
ownership  to  the  mines  and  ditches  and  other  developed  works 
on  the  public  lands.  As  far  as  the  West  is  concerned,  there- 
fore, the  then  critical  situation  was  happily  relieved  by  the 


DEVELOPMENT  OF  DOCTRINE  OF  APPROPRIATION    3 

passage  of  the  famous  Act  of  1866,  which  is  now  Section  2339 
of  the  Revised  Statutes  of  the  United  States,  and  reads  as 
follows : 

Whenever,  by  priority  of  possession,  rights  to  the  use  of  water 
for  mining,  agricultural,  manufacturing,  or  other  purposes,  have  vested 
and  accrued,  and  the  same  are  recognized  and  acknowledged  by  the 
local  customs,  laws  and  decisions  of  courts,  the  possessors  and  owners 
of  such  vested  rights  shall  be  maintained  and  protected  in  the  same; 
and  the  right  of  way  for  the  construction  of  ditches  and  canals  for 
the  purposes  herein  specified  is  acknowledged  and  confirmed;  but 
whenever  any  person,  in  the  construction  of  any  ditch  or  canal,  injures 
or  damages  the  possession  of  any  settler  on  the  public  domain,  the 
party  committing  such  injury  or  damage  shall  be  liable  to  the  party 
injured  for  such  injury  or  damage. 

In  1870  the  section  which  is  now  Section  2340  of  the 
Revised  Statutes,  and  which  is  generally  construed  with  Sec- 
tion 2339,  was  passed.  It  is  as  follows : 

All  patents  granted,  or  pre-emption  or  homesteads  allowed,  shall 
be  subject  to  any  vested  and  accrued  water-rights,  or  rights  to  ditches 
and  reservoirs  used  in  connection  with  such  water-rights  as  may  have 
been  acquired  under  or  recognized  by  the  preceding  section. 

It  is  to  be  noted  that  by  the  two  sections  above  quoted 
not  only  were  the  water  rights  which  had  vested  and  accrued 
recognized,  but  also  the  rights  of  way  for  ditches  and  reser- 
voirs in  connection  therewith. 

The  first  noteworthy  judicial  construction  of  the  Act  of 
1866  was  by  the  Supreme  Court  of  Nevada  in  the  case  of  Van 
Sickle  v.  Haines  (7  Nev.  249)  decided  in  January,  1872.  Both 
parties  were  the  owners  in  fee  of  their  respective  lands. 
Haines'  patent  was  dated  December  28,  1864,  and  long  prior 
thereto  Van  Sickle  had  diverted  part  of  the  waters  of  Daggett 
Creek,  which  diversion  was  interfered  with  by  Haines  in 
December,  1867,  under  the  claim  of  riparian  ownership.  The 
lower  court  rendered  judgment  in  favor  of  Van  Sickle  on  the 
grounds  of  prior  appropriation,  but  the  Supreme  Court  held 
that  such  rights  of  appropriation  were  inferior  to  the  riparian 
rights  of  Haines  and  reversed  the  decision.  In  reference  to 
the  Act  of  1866,  the  Supreme  Court  said : 

The  Act  of  Congress  of  July,  1866,  if  it  shows  anything,  shows 
that  no  diversion  had  previously  been  authorized,  for  if  it  had  whence 
the  necessity  of  passing  the  Act,  which  appears  simply  to  have  been 
adopted  to  protect  those  who  at  that  time  were  diverting  water  from 
its  natural  channel? 

Doubtless,  all  patents  issued,  or  titles  acquired  from  the  United 
States,  since  July,  1866,  are  obtained  subject  to  the  rights  existing  at 
that  time,  but  this  is  a  different  case,  for  if  the  appellant  has  any 
right  to  the  water,  he  acquired  it  by  the  patent  issued  to  him  two 


4  ELEMENTS     OF     WESTERN     WATER     LAW 

years  before  that  time,  and  with  which,  therefore,  Congress  could  not 
interfere. 

On  May  28,  1872,  the  Federal  Circuit  Court  for  Nevada 
decided  the  case  of  Union  Mill  &  Milling  Co.  v.  Ferris  (2  Saw. 
176).  The  mill  company,  as  a  riparian  owner,  brought  the 
action  to  enjoin  Ferris  and  other  farmers  in  the  Upper  Carson 
Valley  from  diverting  the  waters  of  Carson  River.  Regarding 
the  Act  of  1866  the  court  said : 

For  seventeen  years  prior  to  1866,  the  mineral  land  of  California 
and  Nevada  had  been  occupied  by  the  citizens  of  the  United  States, 
without  objection  on  the  part  of  the  government.  Canals  and  ditches 
were  dug  at  this  time,  often  at  great  expense,  over  the  public  lands, 
and  the  water  of  the  streams  diverted  by  these  means  for  mining  and 
other  purposes.  Local  customs  grew  up  in  the  mining  districts,  by 
common  consent,  and  by  rules  adopted  at  miners'  meetings  for  govern- 
ing the  location,  recording  and  working  of  mining  claims  in  the  par- 
ticular mining  district.  Possessory  rights  to  public  lands,  mining  claims 
and  water  were  regulated  by  state  statutes,  and  enforced  by  the  state 
courts 

But  the  Act  is  prospective  in  its  operation,  and  cannot  be  con- 
strued so  as  to  divert  a  part  of  an  estate  granted  before  its  passage. 
If  it  be  admitted  that  Congress  has  the  power  to  divest  a  vested  right 
by  giving  a  statute  a  retrospective  operation,  that  interpretation  will 
never  be  adopted  without  absolute  necessity. 

To  appreciate  the  seriousness  of  the  two  Nevada  decisions 
above  mentioned,  it  must  be  remembered  that,  by  the  con- 
struction therein  given,  one  who  received  patent  prior  to  July, 
1866,  for  riparian  land  could  enjoin  diversions  above  him  to 
non-riparian  lands  no  matter  how  long  such  diversions  had 
existed,  and  also  that  any  one  who  secured  patent  prior  to 
July,  1866,  to  land  crossed  by  a  ditch  became  the  owner  of 
such  ditch,  or  at  least  could  stop  its  operation. 

Fortunately  for  the  early  investors,  the  Supreme  Court 
of  the  United  States  did  not  adopt  the  Nevada  Court's  view, 
as  is  clearly  shown  in  the  case  of  Broder  v.  Natoma  Water  '& 
Mining  Company  (101  U.  S.  274)  decided  in  October,  1879. 
The  water  company  had  constructed  a  ditch  at  an  expense  of 
about  $200,000  in  1853  on  lands  then  public.  Part  of  the  land 
crossed  was  within  the  Central  Pacific  Railroad  grant  under 
the  Act  of  1864,  and  Broder  became  the  owner  thereof  and 
brought  the  action  to  have  the  canal  declared  a  nuisance  and 
to  recover  $12,000  damages  on  account  of  its  maintenance  on 
the  land.  In  construing  the  provisions  of  the  Act  of  1866  in 
its  bearing  upon  the  case,  the  Court  said : 

In  reference  to  his  lands  held  under  conveyance  from  the  railroad 
company,  it  might  be  a  question  of  some  difficulty  whether  the  right 
was  so  far  vested  in  that  company  before  the  passage  of  this  Act  of 


DEVELOPMENT  OF  DOCTRINE  OF  APPROPRIATION    5 

1866,  that  the  latter  would  be  ineffectual  as  regards  these  lands.  But 
we  do  not  think  that  the  defendant  is  under  the  necessity  of  relying 
on  that  statute. 

It  is  the  established  doctrine  of  this  court  that  rights  of  miners, 
who  had  taken  possession  of  mines  and  worked  and  developed  them, 
and  the  rights  of  persons  who  had  constructed  canals  and  ditches  to 
be  used  in  mining  operations  and  for  purposes  of  agricultural  irriga- 
tion, in  the  region  where  such  artificial  use  of  the  water  was  an  abso- 
lute necessity,  are  rights  which  the  government  had,  by  its  conduct, 
recognized  and  encouraged  and  was  bound  to  protect,  before  the  pas- 
sage of  the  Act  of  1866.  We  are  of  opinion  that  the  section  of  the  Act 
which  we  have  quoted  was  rather  a  voluntary  recognition  of  a  pre- 
existing right  of  possession,  constituting  a  valid  claim  to  its  continued 
use,  than  the  establishment  of  a  new  one.  This  subject  has  so  recently 
received  our  attention,  and  the  grounds  on  which  this  construction 
rests  are  so  well  set  forth  in  the  following  cases,  that  they  will  be 
relied  on  without  further  argument. 

The  Broder  v.  Natoma  Water  Company  decision  has 
continued  to  be  the  accepted  construction  of  the  Act  of  1866, 
and  what  uncertainty  may  have  arisen  from  the  Nevada  decis- 
ions was  thus  removed. 

As  the  first  appropriations  on  the  public  domain  were  by 
the  miners,  it  became  the  custom  to  initiate  water  rights  by 
posting  notices  similar  to  those  used  for  the  mineral  claims. 
The  fact  that  the  notice  in  the  case  of  the  water  claim  could 
hardly  be  seen  except  by  accident,  and  was  therefore  not  like 
the  mining  notice  which  could  be  seen  by  all  prospectors 
passing  the  mineral  claim,  did  not  appeal  to  the  early  miners. 
The  water  claims  posted  in  accordance  with  custom  were 
recorded  in  the  county  records  long  prior  to  any  legislation 
authorizing  or  requiring  such  recordation. 

Reference  has  been  made  to  Irwin  v.  Phillips  and  the 
rule  of  prior  appropriation.  In  the  following  year,  1856,  the 
case  of  Conger  v.  Weaver  (6  Cal.  548)  was  decided  and  estab- 
lished, as  between  claimants  on  government  land,  the  doctrine 
of  relation  in  regard  to  appropriations  in  the  following  words : 

But,  from  the  nature  of  these  works,  it  is  evident  that  it  requires 
time  to  complete  them,  and  from  their  extent,  in  some  instances,  it 
would  require  much  time;  and  the  question  now  arises,  at  what  point 
of  time  does  the  right  commence,  so  as  to  protect  the  undertaker  from 
the  subsequent  settlements  or  enterprises  of  other  persons.  If  it  does 
not  commence  until  the  canal  is  completed,  then  the  license  is  value- 
less, for  after  nearly  the  whole  work  has  been  done,  any  one,  actuated 
by  malice  or  self-interest,  may  prevent  its  accomplishment;  any  small 
squatter  settlement  might  effectively  destroy  it. 

But  I  apprehend  that,  in  granting  the  license  which  we  have  pre- 
sumed for  the  purpose  before  us,  the  state  did  not  intend  that  it  should 
be  turned  into  so  vain  a  thing,  but  designed  that  it  should  be  effectual 


6  ELEMENTS     OF     WESTERN     WATER     LAW 

for  the  object  in  view;  and  it  consequently  follows  that  the  same  rule 
must  be  applied  here  to  protect  this  right  as  in  any  other. 

So,  in  the  case  of  constructing  canals,  under  the  license  from  the 
state,  the  survey  of  the  ground,  planting  stakes  along  the  line,  and 
actually  commencing  and  diligently  pursuing  the  v/ork,  is  as  much 
possession  as  the  nature  of  the  subject  will  admit,  and  forms  a  series 
of  acts  of  ownership  which  must  be  conclusive  of  the  right. 

In  an  earlier  case,  Eddy  v.  Simpson  (3  Cal.  252)  decided 
in  1853,  it  was  said: 

It  is  laid  down  by  our  law  writers,  that  the  right  of  property  in 
water  is  usufructuary,  and  consists  not  so  much  of  the  fluid  itself  as 
the  advantage  of  its  use.  .  .  .  The  right  is  not  in  the  corpus  of 
the  water,  and  only  continues  with  its  possession. 

The  above  decisions  are  but  illustrations  of  many  by  the 
California  Supreme  Court  in  the  fifties  which  established  the 
general  principles  of  the  law  of  prior  appropriation.  As  new 
cases  arose  the  principles  were  enlarged  upon  and  strength- 
ened, so  that  when  the  California  legislature  did  finally  act 
upon  this  subject  in  1872,  the  sections  adopted  were  but 
declaratory  of  existing  law.  The  sections  then  enacted  became 
sections  1410  to  1422  of  the  Civil  Code  and,  with  minor  amend- 
ments, governed  the  appropriation  of  water  in  California  until 
December  19,  1914,  when  the  Water  Commission  Act  became 
effective.  Appropriations  of  water  for  power  purposes  were, 
however,  previously  governed  by  a  statute  effective  April  8, 
1911.  Although  the  sections  are  not  now  in  force  in  California, 
they  are  quoted  here  as  they  were  the  first  general  statutes 
providing  for  the  appropriation  of  water  in  the  western  states, 
and  served  as  a  model  for  the  first  legislation  along  this  line 
in  the  other  western  states. 

Sections  1410  to  1422  of  the  Civil  Code  of  California,  as 
adopted  in  1872,  are  as  follows : 

Sec.  1410.  The  right  to  the  use  of  running  water  flowing  in  a 
river  or  stream  or  down  a  canyon  or  ravine  may  be  acquired  by  appro- 
priation. 

Sec.  1411.  The  appropriation  must  be  for  some  useful  or  bene- 
ficial purpose,  and  when  the  appropriator  or  his  successor  in  interest 
ceases  to  use  it  for  such  a  purpose,  the  right  ceases. 

Sec.  1412.  The  person  entitled  to  the  use  may  change  the  place 
of  diversion,  if  others  are  not  injured  by  such  change,  and  may  extend 
the  ditch,  flume,  pipe,  or  aqueduct  by  which  the  diversion  is  made  to 
places  beyond  that  where  the  first  use  was  made. 

Sec.  1413.  The  water  appropriated  may  be  turned  into  the  chan- 
nel of  another  stream  and  mingled  with  its  water,  and  then  reclaimed; 
but  in  reclaiming  it  the  water  already  appropriated  by  another  must 
not  be  diminished. 

Sec.  1414.  As  between  appropriators,  the  one  first  in  time  is  the 
first  in  right. 


DEVELOPMENT    OP    DOCTRINE    OF    APPROPRIATION          7 

Sec.  1415.  A  person  desiring  to  appropriate  water  must  post  a 
notice,  in  writing,  in  a  conspicuous  place  at  the  point  of  intended  diver- 
sion, stating  therein: 

1.  That  he  claims  the  water  there  flowing  to  the  extent  of  (giving 
the  number)  inches,  measured  under  a  four-inch  pressure; 

2.  The  purposes  for  which  he  claims  it,  and  the  place  of  intended 
use; 

3.  The  means  by  which  he  intends  to  divert  it,  and  the  size  of 
the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to  divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted,  be 
recorded  in  the  office  of  the  recorder  of  the  county  in  which  it  is  posted. 

Sec.  1416.  Within  sixty  days  after  the  notice  is  posted,  the  claim- 
ant must  commence  the  excavation  or  construction  of  the  works  in 
which  he  intends  to  divert  the  water,  and  must  prosecute  the  work 
diligently  and  uninterruptedly  to  completion,  unless  temporarily  inter- 
rupted by  snow  or  rain. 

Sec.  1417.  By  "completion"  is  meant  conducting  the  waters  to 
the  place  of  intended  use. 

Sec.  1418.  By  a  compliance  with  the  above  rules  the  claimant's 
right  to  the"  use  of  the  water  relates  back  to  the  time  the  notice  was 
posted. 

Sec.  1419.  A  failure  to  comply  with  such  rules  deprives  the 
claimants  of  the  right  to  the  use  of  the  water  as  against  a  subsequent 
claimant  who  complies  therewith. 

Sec.  1420.  Persons  who  have  heretofore  claimed  the  right  to 
water,  and  who  have  not  constructed  works  in  which  to  divert  it,  and 
who  have  not  diverted  nor  applied  it  to  some  useful  purpose,  must, 
after  this  title  takes  effect,  and  within  twenty  days  thereafter,  proceed 
as  in  this  title  provided,  or  their  right  ceases. 

Sec.  1421.  The  recorder  of  each  county  must  keep  a  book,  in 
which  he  must  record  the  notices  provided  for  in  this  title. 

Sec.  1422.  The  rights  of  riparian  proprietors  are  not  affected 
by  the  provisions  of  this  title. 

As  stated  above,  under  the  doctrine  of  relation  laid  down 
in  Conger  v.  Weaver,  the  right  to  appropriate  water,  after  the 
completion  of  the  diversion  works  with  reasonable  diligence, 
dated  back  to  the  first  steps  taken  in  regard  thereto.  The 
statute,  in  Section  1418,  fixed  this  first  step  as  the  posting  of 
the  notice  (Section  1415).  It  is  well  settled  (Wells  v.  Mantes, 
99  Cal.  583,  and  a  number  of  later  cases)  that  it  was  not  neces- 
sary to  follow  the  statute  in  order  to  make  a  valid  appropria- 
tion, but  by  failure  to  follow  the  statute  the  benefit  of  the 
doctrine  of  relation  was  lost  and  the  right  dated  back  to  the 
completion  of  the  work  only.  There  was  therefore  nothing  to 
be  gained  and  much  to  be  lost  by  not  following  the  statute. 

As  is  shown  by  Sections  1415  and  1416,  there  was  no 
public  officer  in  California  concerned  in  the  form  or  contents 
of  the  notice  of  appropriation  and  the  consequent  construction 


8  ELEMENTS     OF     WESTERN     WATER     LAW 

work.  The  county  records  abound  in  notices  under  which  no 
construction  or  survey  work  was  ever  done.  Such  notices  are 
not  worthy  of  the  slightest  consideration  and  are  in  no  way 
"clouds  upon  the  title,"  as  is  often  claimed.  Unless  the  con- 
struction work  was  begun  and  continued  with  reasonable 
diligence  to  completion,  as  provided  in  the  statute,  no  right 
accrued. 

In  regard  to  the  statements  required  by  the  three  subdi- 
visions of  Section  1415,  practically  any  notice,  regardless  of 
form,  giving  the  number  of  inches  claimed,  the  purposes,  place 
of  use,  means  of  diversion  and  size  of  conduit,  was  sufficient. 
In  the  records  are  found  examples  of  empty  generalities  as 
well  as  some  of  refined  details.  As  an  illustration  of  how 
little  had  to  be  stated,  to  be  accepted  as  sufficient  by  the 
Supreme  Court,  the  following  notice  from  the  case  of  De  Wolf- 
skill  v.  Smith  (5  Cal.  App.  175)  is  quoted : 

Notice  of  Appropriation  of  Water.  Take  notice  that  the  under- 
signed claims  fifteen  hundred  inches  of  water  measured  under  a  four, 
inch  pressure  flowing  from  and  at  the  wells  bored  by  the  San  Jacinto 
Oil  Company  on  the  land  which  would  be  the  northwest  quarter  of 
section  four,  township  three  south,  range  two  west,  San  Bernardino 
meridian,  if  said  land  were  surveyed  by  the  United  States,  and  I  intend 
to  divert  said  water  at  the  three  several  points  where  this  notice  is 
posted,  to-wit,  at  each  of  said  wells  bored  by  the  San  Jacinto  Oil 
Company. 

I  intend  to  use  said  water  for  domestic  and  irrigation  purposes  on 
the  land  which  was  known  as  the  Rancho  San  Jacinto  Nuevo  and  the 
Lorena,  Lakeview  and  Alesandro  Colonies  and  adjoining  lands  in  the 
county  of  Riverside,  state  of  California. 

I  intend  to  divert  said  water  by  means  of  ditches  of  sufficient 
capacity  to  carry  same,  leading  from  each  of  said  points. 

Dated  the   thirteenth   day   of   October,   1902. 

ELENA  P.  deWOLFSKILL. 
Witness:     DAVID  G.  deWOLFSKILL. 


CHAPTER  II 
RIPARIAN  RIGHTS  IN  THE  WESTERN  STATES 

According  to  the  common  law  doctrine  of  riparian  rights 
in  the  law  of  waters,  each  owner  along  a  stream  is  entitled 
to  have  the  waters  thereof  flow  in  the  natural  channel,  un- 
polluted in  quality  and  undiminished  in  quantity.  A  strict 
interpretation  of  the  doctrine  would  therefore  forbid  any  use 
whatsoever  of  the  waters  of  the  stream.  It  was  early  modi- 
fied in  England  so  that  two  uses  are  recognized — ordinary 
or  natural,  including  the  use  for  domestic  and  stock  pur- 
poses; and  extraordinary  or  artificial,  including  the  use  for 
irrigation  along  the  banks  and  also  for  mechanical  purposes. 
For  "ordinary"  uses  the  upper  riparian  owner  is  allowed  to 
take  the  entire  stream  if  necessary;  but  for  "extraordinary" 
uses  he  is  entitled  to  water  only  when  such  use  will  not 
interfere  with  a  like  use  by  other  riparian  owners — that  is,  he 
must  share  the  stream  with  others  along  its  banks. 

As  shown  in  the  previous  chapter,  a  different  doctrine — 
that  of  appropriation — grew  up  during  the  early  occupancy 
by  the  miners  of  the  public  domain  in  the  western  states.  It 
was  also  shown  that  the  early  California  cases  establishing 
the  new  doctrine  were  between  parties  not  holding  title  to 
any  land  along  the  streams;  and  that  the  Supreme  Court  of 
Nevada  in  Van  Sickle  v.  Haines  (7  Nev.  149)  and  the  Federal 
Circuit  Court  for  Nevada  in  Union  Mill  &  Mining  Co.  v. 
Ferris  (2  Saw.  176)  in  1872  held  that  in  cases  where  title  to 
riparian  land  had  passed  from  the  government,  the  new 
doctrine  must  give  way  to  the  older  and  long  recognized  (in 
England  and  the  eastern  states)  doctrine  of  riparian  rights. 

The  basis  of  the  argument  for  the  rule  laid  down  in  the 
two  Nevada  cases  was  a  statutory  provision  making  the 
common  law  of  England  the  rule  of  decision  in  all  the 
Nevada  courts.  It  is  important  to  note  the  following  words 
of  Mr.  Chief  Justice  Lewis  (in  Van  Sickle  v.  Haines)  regard- 


ELEMENTS     OF     WESTERN     WATER     LAW 

lie  two  doctrines,  as  they  show  an  erroneous  view  of 
the  doctrine  of  appropriation  which,  unfortunately,  has  been 
shared  by  the  courts  in  many  western  states : 

It  (the  common  law)  is  a  rule  which  gives  the  greatest  right  ta 
the  greatest  number,  authorizing  each  to  make  a  reasonable  use  of  it, 
providing  he  does  no  injury  to  the  others  equally  entitled  to  it  with 
himself;  whilst  the  rule  of  prior  appropriation  here  advocated  would 
authorize  the  first  person  who  might  choose  to  make  use  of  or  divert  a 
stream,  to  use  or  even  waste  the  whole  to  the  utter  ruin  of  others  who 
might  wish  it. 

In  marked  contrast  to  the  attitude  of  the  Nevada  courts 
in  the  early  cases  is  that  of  the  Colorado  courts.  In  Coffin 
v.  Left  Hand  Ditch  Co.,  6  Colo.  443,  decided  in  1882,  the  issue 
between  riparian  owners  and  appropriators  was  before  the 
court  for  the  first  time.  Coffin  and  others  were  riparian  own- 
ers along  the  St.  Vrain  River,  who,  in  the  dry  season  of  1879, 
interfered  with  the  ditch  of  the  Ditch  Company,  which  di- 
verted the  St.  Vrain  waters  to  another  watershed.  The  com- 
pany being  a  prior  appropriator,  Coffin  relied  upon  his  riparian 
right.  The  opinion  is  full  of  strong  expressions  showing  the 
need  of  appropriation  in  an  arid  section,  but  a  few  concluding 
sentences  only  are  given  here : 

We  conclude,  then,  that  the  common-law  doctrine  giving  the 
riparian  owner  a  right  to  the  flow  of  water  in  its  natural  channel  upon 
and  over  his  lands,  even  though  he  makes  no  beneficial  use  thereof, 
is  inapplicable  to  Colorado.  Imperative  necessity,  unknown  to  the 
countries  which  gave  it  birth,  compels  the  recognition  of  another  doc- 
trine in  conflict  therewith.  And  we  hold  that,  in  the  absence  of  express 
statutes  to  the  contrary,  the  first  appropriator  of  water  from  a  natural 
stream  for  a  beneficial  purpose  has,  with  the  qualifications  contained 
in  the  constitution,  a  prior  right  thereto  to  the  extent  of  such  appro- 
priation. 

In  the  late  seventies  the  case  of  Jones  v.  Adams,  (19  Nev. 
78),  arose  out  of  the  conflict  over  the  waters  of  Sierra  Creek, 
which,  like  Daggett  Cre^k-5^  the  Van  Sickle  case,  is  a  small 
mountain  stream  on  the  west  side  of  Carson  Valley  in  Ne- 
vada. It  was  decided  by  the  Supreme  Court  of  Nevada  in 
1885,  and  the  Van  Sickle  case  was  overruled  on  the  ground 
that  the  doctrines  of  the  common  law  were  inapplicable  "to 
the  wants  and  necessities  of  the  people,  whether  engaged  in 
mining,  agricultural  or  other  pursuits".  The  doctrine  of 
riparian  rights  was  thus  excluded  from  the  law  of  waters  in 
Nevada  and  has  so  remained. 

The  year  following  the  decision  in  Jones  v.  Adams,  the 
Supreme  Court  of  California  decided  the  celebrated  case  of 
Lux  v.  Haggin  (69  Cal.  255).  The  extreme  length  of  the 
opinion  (two  hundred  pages — probably  the  longest  in  the 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          11 

California  reports)  is  sufficient  evidence  of  its  importance  and 
the  interest  in  the  issue  involved.  Lux  and  others  sought  to 
stop  Haggin  from  diverting  the  waters  of  Kern  River  which 
would  naturally  flow  down  Buena  Vista  Slough,  to  which  their 
lands  were  riparian.  As  in  the  Van  Sickle  case,  the  court 
had  a  wrong  impression  of  appropriation  and  said,  "It  does 
not  require  a  prophetic  vision  to  anticipate  that  the  adoption 
of  the  rule,  so  called,  of  'appropriation'  would  result  in  a 
monopoly  of  all  the  waters  of  the  state  by  comparatively  few 
individuals.  .  .  ." 

The  riparian  doctrine  as  modified  in  Lux  v.  Haggin  is 
commonly  called  the  California  rule.  Its  principles,  so  often 
quoted,  are  best  given  in  the  words  of  the  Court : 

By  the  common  law  the  right  of  the  riparian  proprietor  to  the  flow 
of  the  stream  is  inseparably  annexed  to  the  soil,  and  passes  with  it, 
not  as  an  easement  or  appurtenance,  but  as  part  and  parcel  of  it. 
Use  does  not  create  the  right,  and  disuse  cannot  destroy  or  suspend  it. 
The  right  in  each  extends  to  the  natural  and  usual  flow  of  all  the  water, 
unless  where  the  quantity  has  been  diminished  as  a  consequence  of  the 
reasonable  application  of  it  by  other  riparian  owners  for  purposes 
hereafter  to  be  mentioned. 

By  our  law  the  riparian  proprietors  are  entitled  to  a  reasonable 
use  of  the  waters  of  the  stream  for  the  purpose  of  irrigation.  What 
is  such  reasonable  use  is  a  question  of  fact,  and  depends  upon  the  cir- 
cumstances appearing  in  each  particular  case.  . 

Lux  v.  Haggin  was  decided  by  a  divided  court  of  four 
'to  three.  It  has  not  only  fastened  the  rule  of  riparian  rights 
upon  California,  seemingly  for  all  time,  but  has  been  the 
main  reliance  of  the  other  western  states  following  the  Cali- 
fornia rule.  The  following  extract  from  the  dissenting  opin- 
ion of  Mr.  Justice  Ross  shows  how  decided  was  the  difference 
of  opinion  among  the  Justices: 

The  common-law  doctrine  of  riparian  rights  being  wholly  incon- 
sistent with  and  antagonistic  to  that  of  appropriation,  it  necessarily 
follows  that  when  the  federal  and  state  governments  assented  to, 
recognized,  and  confirmed,  with  respect  to  the  waters  upon  the  public 
lands,  the  doctrine  of  appropriation,  they  in  effect  declared  that  that  of 
riparian  rights  did  not  apply.  The  doctrine  of  appropriation  thus 
established  was  not  a  temporary  thing,  to  exist  only  until  some  one 
should  obtain  a  certificate  or  patent  for  forty  acres  or  some  other 
subdivision  of  the  public  land  bordering  on  the  river  or  other  stream 
of  wajter.  It  was,  as  has  been  said,  born  of  the  necessities  of  the 
country  and  its  people,  was  the  growth  of  years,  permanent  in  its 
character,  and  fixed  the  status  of  water  rights  with  respect  to  public 
lands. 

The  California  rule  has  been  adopted  in  California,  Kan- 
sas, Montana  (still  doubtful),  Nebraska,  North  Dakota,  Okla- 


12  ELEMENTS     OF     WESTERN     WATER     LAW 

homa,  Oregon,  South  Dakota,  Texas  and  Washington.  Parts 
of  each  of  the  states  named  are  so  humid  that  irrigation  is  not 
only  not  necessary,  but  there  is  a  demand  for  drainage.  In  the 
remainder  of  the  irrigation  states — Arizona,  Colorado,  Idaho, 
Nevada,  New  Mexico,  Utah  and  Wyoming — the  doctrine  of 
riparian  rights  has  been  abrogated  and  the  so-called  Colorado 
rule  followed;  that  is,  the  doctrine  of  appropriation  exclus- 
ively. It  may  assist  one  to  remember  the  above  classification 
by  noting  that  the  semi-arid  or  "border"  states  (that  is, 
bordering  the  irrigation  zone)  follow  the  California  rule,  and 
that  the  strictly  arid  or  "interior"  states  (that  is,  well  within 
the  irrigation  zone)  follow  the  Colorado  rule. 

One  often  hears  the  remark  that  there  is  now  no  real 
conflict  between  the  doctrines  in  California,  and  it  many  times 
comes  from  a  supposedly  reliable  source.  Even  the  Supreme 
Court  of  Nevada  in  Twaddle  v.  Winters  (29  Nev.  88)  decided 
in  1906,  in  speaking  of  the  passing  of  the  doctrine  of  riparian 
rights,  quoted  with  approval  the  testimony  of  a  California 
Congressman  in  the  case  of  Kansas  v.  Colorado,  in  which  he 
said  "that  there  had  been  a  departure  from  the  principles 
laid  down  in  Lux  v.  Haggin,  because  at  that  time  the  value 
of  water  was  not  realized;  that  the  decision  had  been  prac- 
tically reversed  by  the  same  court  on  subsequent  occasions, 
and  that  the  doctrine  of  prior  appropriation  and  the  application 
of  water  to  a  beneficial  use  is  in  effect  in  force  now  in  that 
state." 

The  above  statement  is  entirely  misleading,  as  the  Cali- 
fornia Supreme  Court  has  not  only  not  departed  from  its 
position  in  Lux  v.  Haggin,  but  has  handed  down  opinions 
which  almost  nullify  the  doctrine  of  appropriation  under 
certain  physical  conditions. 

While  the  Nevada  Supreme  Court  was  writing  its  opin- 
ion in  Twaddle  v.  Winters  the  case  of  Miller  &  Lux  v.  Madera 
Canal  Co.  (155  Cal.  59)  was  before  the  California  Supreme 
Court.  It  was  finally  decided  in  January,  1909.  Miller  £  Lux, 
as  riparian  owner  along  the  lower  Fresno  River,  sought  to 
enjoin  the  Madera  Canal  Company  from  diverting  the  flood 
waters  thereof  for  storage  »in  reservoirs.  The  Fresno  River 
drains  only  the  lower  mountain  area  and  is,  therefore,  dry 
early  in  the  summer.  The  canal  company  is  the  owner  of  a 
system  of  ditches  for  the  lands  in  the  vicinity  of  Madera.  and 
intended  to  make  use  of  certain  natural  depressions  as  reser- 
voirs so  that  the  flood  waters  of  May  and  early  June  might 
be  stored  for  use  later  in  the  season.  The  river  banks  through 
the  Miller  &  Lux  property  are  so  low  that  the  floods  annually 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          13 

overflow  them  and  deposit  "on  such  lands  large  quantities  of 
fertilizing  and  enriching  materials,  increasing  their  produc- 
tiveness and  enhancing  their  value." 

The  canal  company  argued  that  it  intended  to  divert  and 
store  only  the  flood  waters  which  could  not  be  considered  part 
of  the  natural  flow  to  which  the  riparian  owners  were  entitled, 
and  that  the  use,  if  such  it  could  be  called,  of  the  flood  waters 
by  Miller  &  Lux  was  too  wasteful  and  unreasonable  to  be 
tolerated.  The  Court  refused  to  accept  this  argument  in  the 
following  language : 

What  the  riparian  proprietor  is  entitled  to  as  against  non-riparian 
takers  is  the  ordinary  and  usual  flow  of  the  stream.  There  is  no  good 
reason  for  saying  that  the  greatly  increased  flow  following  the  annually 
recurring  fall  of  rain  and  melting  of  snow  in  the  region  about  the  head 
of  the  stream  is  any  less  usual  or  ordinary  than  the  much  diminished 
flow  which  comes  after  the  rains  and  the  melted  snows  have  run  off. 

The  doctrine  that  a  riparian  owner  is  limited  to  a  reasonable  use 
of  the  water  applies  only  as  between  different  riparian  proprietors. 
As  against  an  appropriator  who  seeks  to  divert  water  to  non-riparian 
lands,  the  riparian  owner  is  entitled  to  restrain  any  diversion  which 
will  deprive  him  of  the  customary  flow  of  water  which  is  or  may  be 
beneficial  to  his  land.  He  is  not  limited  by  any  measure  of  reason- 
ableness. 

A  case  even  more  bewildering  to  appropriators,  if  pos- 
sible, was  that  of  Miller  v.  Bay  Cities  Water  Company  (157 
Cal.  256),  decided  one  year  later — February,  1910.  Miller 
was  the  owner  of  a  small  orchard  in  the  Santa  Clara  Valley 
and  had  for  years  irrigated  it  by  pumping  from  a  well.  The 
water  company  intended  to  construct  a  dam  to  bed  rock 
across  the  "lower  gorge"  of  the  Coyote  River  and  thus  im- 
pound the  flood  waters  of  the  stream  for  diversion  to  San 
Francisco  or  other  bay  cities.  Below  the  lower  gorge  the 
river  flows  through  Santa  Clara  Valley  to  San  Francisco 
Bay,  so  that  no  lower  storage  is  possible.  Miller  claimed  that 
the  dam  would  prevent  the  underground  waters  from  reach- 
ing the  water  bearing  stratum  tapped  by  his  well  and  sought 
an  injunction. 

The  Supreme  Court  sustained  the  finding  of  the  lower 
court  that  the  water  bearing  stratum  below  Miller's  land  has 
its  "intake"'  in  the  vast  bed  of  gravel  in  the  lower  gorge  and 
is  supplied  by  the  surface  and  subsurface  waters  of  the 
Coyote  River  flowing  through  said  gorge.  It  accordingly 
affirmed  the  decree  perpetually  enjoining  the  water  company 
"from  arresting  or  obstructing  at  or  above  the  lower  gorge 
(excepting  for  the  reasonable  use  thereof  on  the  lands  of  said 
corporation. in  the  exercise  of  its  riparian  rights)  any  of  the 


14  ELEMENTS     OF     WESTERN     WATER     LAW 

water  of  the  Coyote  River  which,  excepting  for  said  arresting 
or  diverting,  would  flow  on  the  surface  of  the  bed  of  said  river 
through  said  gorge,  or  would  flow  or  percolate  through  said 
gorge  underneath  the  surface  thereof". 

In  a  later  chapter  it  will  be  shown  that  the  owners  of  land 
overlying  a  water  bearing  stratum  are  treated  in  California 
as  riparian  owners,  so  the  Supreme  Court  held  that  the  water 
company  was  properly  restrained  from  diverting  to  non- 
riparian  lands  the  water  which  would  flow  through  the  stratum 
tapped  by  Miller's  well.  The  water  company  insisted  "that 
if  the  plaintiff  has  a  right  to  enjoin  the  diversion  of  the  waters 
of  the  stream  which  would  otherwise  percolate  to  and  supply 
the  artesian  stratum  underlying  his  land,  the  court  was  not 
warranted  in  enjoining  the  appellants  from  diverting  the  flood 
waters  of  the  Coyote  River,  which  it  was  claimed  were  wasted 
and  lost  in  the  bay  of  San  Francisco. 

Regarding  this  argument  the  Supreme  Court  said : 
All  these  waters  are  necessary,  of  themselves  or  by  their  force, 
to  supply  underground  waters,  which  they,  even  now,  fail  to  do  to  the 
full  capacity  of  the  underlying  strata,  to  which  full  capacity  the  plain- 
tiff and  others  interested  in  them  are  entitled.  .  .  .  We  are  not 
prepared  to  say  that,  even  in  their  flow  after  passing  the  gravels  in 
which  the  intake  to  these  artesian  strata  lie,  they  serve  no  other  useful 
purpose,  but  certainly  these  storm  waters  do  not  become  waste  until 
they  have  flowed  over  these  gravel  beds  and  are  on  their  way  to  the 
bay.  It  is  only  there  that  it  may  be  said  that  they  can  perform  no 
further  useful  service,  the  only  place  where  they  first  become  waste 
waters,  and  where,  without  apparently  invading  the  rights  of  anyone 
they  may  be  diverted.  No  reasonable  objection  could  be  made  to  the 
diversion  of  the  waters  there  because  they  are  then,  for  all  practical 
purposes,  waste  waters. 

The  above  ruling  seems  to  establish  so  wasteful  a  policy 
that  Mr.  Justice  Shaw  wrote  a  concurring  opinion  and  clearly 
presented  the  dire  need  of  storage  of  our  flood  waters,  showing 
the  accomplishment  of  the  triple  purpose  of  lessening  damage 
by  overflow,  affording  irrigation  water  during  the  dry  season 
and,  through  return  waters  from  increased  irrigation,  bet- 
tering navigation  during  the  low  water  period.  He  held, 
however,  that  the  conditions  in  the  Santa  Clara  Valley  are 
not  paralleled  elsewhere  in  the  state,  except  it  may  be  in  the 
San  Fernando  valley,  and  call  for  the  rule  laid  down;  that 
the  floods  when  waste  occurs  are  infrequent  and  such  waste 
small  and  practically  indeterminable;  that  the  storage  at 
chance  intervals  of  such  small  quantities,  subject  to  heavy 
evaporation  losses,  would  be  of  little  value;  and  that  grant- 
ing permission  to  store  such  waste  while  conferring  no 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          15 

substantial  benefit  upon  the  water  company  would  lessen  the 
value  of  the  valley  property  overlying  the  water  bearing 
stratum. 

The  two  cases  above  discussed  are  of  particular  interest 
as  the  era  of  reservoir  building  in  the  states  recognizing  the 
riparian  doctrine  is  just  beginning.  The  point  to  be  remem- 
bered is  that  each  case  dealt  with  such  conditions  that  the 
court  believed  actual  damage  would  be  done  if  storage  was 
allowed.  This  is  emphasized  in  the  case  of  Miller  &  Lux  v. 
Fresno  Flume  and  Irrigation  Co.  (158  Cal.  626),  decided  No- 
vember 22,  1910,  wherein  the  plaintiff  sought  to  have  enjoined 
the  maintenance  of  defendant's  dam  and  its  alleged  interfer- 
ence with  the  natural  flow  of  Stevenson's  Creek,  a  tributary  of 
the  San  Joaquin  River. 

The  plaintiffs  quoted  many  California  cases  "as  establish- 
ing the  proposition  that  the  riparian  owner  is  entitled  to  the 
unobstructed  flow  of  a  stream  at  all  times,  including  flood 
waters  ....  and  that,  without  regard  to  damage,  it  is 
the  right  of  every  riparian  proprietor  to  have  the  water  come 
to  his  land  through  its  natural  channel,  undiminished  in 
quantity  and  unimpaired  in  quality,  save  to  the  extent  that 
results  from  reasonable  use  of  the  water  by  other  riparian 
owners  upon  the  stream." 

In  answer  to  this  argument  the  court  said : 

But  the  cases  do  not  support  the  position  which  appellants*  take. 
Even  if  at  common  law  or  under  the  civil  law  it  was  a  part  of  the  usu- 
fructuary right  of  the  riparian  owner  to  have  the  water  flow  by  for  no 
purpose  other  than  to  afford  him  pleasure  in  its  prospect,  such  is  not 
the  rule  of  decision  in  this  state.  .  .  . 

It  will  be  found,  therefore,  that  the  decisions  of  this  state  not 
only  do  not  deny  the  right  to  the  use  of  storm  and  flood  waters,  but 
encourage  the  impounding  and  distribution  of  those  waters  wherever 
it  may  be  done  without  substantial  damage  to  the  existing  rights  of 
owners. 

The  court  also  said : 

In  Miller  v.  Bay  Cities  Water  Co.,  157  Cal.  256  (107  Pac.  115), 
the  principle  is  clearly  recognized  and  declared  that  an  appropriator 
of  water  may  divert  for  use  to  any  point  beyond  the  watershed  any 
portion  of  the  waters  of  the  stream  which  serves  no  useful  purpose 
either  to  the  riparian  owners,  or  in  supplying  the  underground  stratum, 
or  such  waters  as  are  in  excess  of  the  quantity  necessary  for  such 
purposes. 

And  later  in  quoting  from  Miller  &  Lux  v.  Madera  Canal 
Company,  said: 

That  our  cases  'decide  that  an  injunction  restraining  the  diver- 
sion of  storm  or  flood  waters  will  not  be  granted  at  the  instance  of 


16  ELEMENTS     OF     WESTERN     WATER     LAW 

a  riparian  owner,  when  it  appears  that  he  will  not  be  injured  in  any 
way  by  such  diversion.' 

The  Court  finally  concluded  that  if  the  doctrine  laid 
down  in  the  earlier  cases  confers  such  rights  upon  riparian 
owners  as  claimed  by  plaintiffs,  then  such  earlier  cases  may 
be  considered  modified  by  the  later  decisions.  The  Fresno 
Flume  storage  was  again  before  the  California  Supreme  Court 
in  San  Joaquin  and  Kings  R.  C.  &  I.  Co.  v.  Fresno  Flume 
and  Irrigation  Co.  (169  Cal.  174),  decided  January  28,  1915, 
and  it  is  therein  held  that  the  former  decision  (158  Cal.  626) 
gave  the  Flume  Co.  the  right  to  store  the  flood  waters  only 
and  not  to  take  waters  which  would  decrease  the  natural 
flow. 

So  far  as  the  natural  flow  is  concerned,  the  California 
Supreme  Court  has  repeatedly  held  that  the  diversion  of 
water  of  the  stream  is  an  injury  to  the  freehold  of  the  riparian 
owner  and  may  be  enjoined  without  a  showing  of  other  im- 
mediate monetary  damages  (Shurtleff  v.  Kehrer,  163  Cal.  24). 

The  most  recent  noteworthy  California  flood  water  decis- 
ion is  Gallatin  v.  Corning  Irrigation  Co.  (163  Cal.  405),  de- 
cided August  5,  1912.  After  commenting  upon  a  number  of 
decisions  dealing  directly  with  the  question  of  riparian  rights 
in  flood  waters,  the  Court  says : 

These  decisions  in  effect  establish  the  just  rule  that  flood  waters 
which  are  of  no  substantial  benefit  to  the  riparian  owner  or  to  his 
land,  and  are  not  used  by  him,  may  be  taken  at  will  by  any  person  who 
can  lawfully  gain  access  to  the  stream,  and  conducted  to  lands  not 
riparian,  and  even  beyond  the  watershed,  without  the  consent  of  the 
riparian  owner  and  without  compensation  to  him.  They  are  not  a  part 
of  the  flow  of  the  stream  which  constitutes  a  "parcel"  of  his  land, 
within  the  meaning  of  the  law  of  riparian  rights. 

In  Oregon  and  Washington  the  courts  have  followed 
California  in  the  flood  water  and  storage  cases.  (Eastern 
Oregon  Land  Co.  v.  Willow  River  Land  and  Irrigation 'Co., 
201  Fed.  203;  Still  v.  Palouse  Irrigation  and  Power  Co.,  117 
Pac.  466;  Longmire  v.  Yakima  Highlands  Irr.  &  Land  Co., 
163  Pac.  782).  In  the  cases  cited,  storage  was  enjoined  as  the 
court  held  that  substantial  damage  would  result  to  complain- 
ing lower  riparian  owners. 

The  conclusion  that  must  be  drawn  from  the  above  is 
that  lower  riparian  owners  may  not  only  enjoin  the  diversion 
of  the  natural  flow  but  may  also  enjoin  the  storage  of  even 
the  flood  waters  if  such  storage  will  result  in  damage,  either 
present  or  prospective.  It  is  therefore  of  vital  interest  to 
know  the  limits  of  riparian  lands  and  the  general  limitations 
which  other  states  have  placed  upon  the  riparian  doctrine. 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          17 

Statutory  Limitation  of  Riparian  Rights 
The  modified  rule  of  riparian  rights  has  been  followed 
by  California,  Kansas,  Montana  (still  doubtful),  Nebraska, 
North  Dakota,  Oklahoma,  Oregon,  South  Dakota,  Texas  and 
Washington;  and  has  been  rejected  by  Arizona,  Colorado, 
Idaho,  Nevada,  New  Mexico,  Utah  and  Wyoming.  Its  rejec- 
tion by  the  above  states  was  not  due  to  constitutional  or 
statutory  provisions,  but  to  the  fact  that  the  doctrine  was 
entirely  unsuited  to  the  physical  conditions  existing  in  an 
arid  region,  as  shown  by  the  quotations  from  Jones  v.  Adams 
and  Coffin  v.  Left  Hand  Ditch  Co.  Similar  language  was 
used  by  the  courts  of  the  other  arid  states  abrogating  the 
doctrine. 

The  only  Supreme  Court  holding  that  the  doctrine  has 
been  modified  by  state  statute  is  that  of  Nebraska.  In 
Crawford  v.  Hathaway  (67  Neb.  325)  decided  February  4, 
1903,  it  is  held: 

The  irrigation  act  of  1889  abrogated  in  this  state  the  common 
law  rule  of  riparian  ownership  in  water,  and  substituted  in  lieu  thereof 
the  doctrine  of  prior  appropriation.  This  legislation  could  not  and 
did  not  have  the  effect  of  abolishing  riparian  rights  which  had  already 
accrued,  but  only  of  preventing  the  acquisition  of  such  rights  in  the 
future. 

The  Nebraska  irrigation  act  of  March  19,  1889,  above 
referred  to,  was  similar  to  the  California  statute  of  1872  pro- 
viding for  the  appropriation  of  water.  This  statute  was 
considered  at  length  in  Lux  v.  Haggin — the  latter  party 
contending  "that  the  Civil  Code  gives  ....  a  right  to 
the  water  superior  to  that  of  the  riparian  proprietor  below/' 
Section  1422  of  the  Civil  Code  then  contained  the  following 
words :  "The  rights  of  riparian  proprietors  are  not  affected 
by  the  provisions  of  this  title."  The  Court  held  that: 

Section  1422  of  the  Civil  Code  is  protective,  not  only  of  riparian 
rights  existing  when  the  Code  was  adopted,  but  also  of  the  riparian 
rights  of  those  who  acquired  a  title  to  land  from  the  State,  after  the 
adoption  of  the  Code  and  before  an  appropriation  of  water  in  accord- 
ance with  the  Code  provisions. 

Neither  a  grantee  of  the  United  States  nor  the  grantee  of  a  pri- 
vate person,  who  was  a  riparian  owner  when  the  Code  was  adopted, 
need  rely  for  protection  on  Section  1422.  Such  persons  are  protected 
by  constitutional  principles. 

At  the  first  California  legislative  session  (1887)  after  the 
decision  of  Lux  v.  Haggin,  section  1422  was  repealed  with 
the  proviso  "that  the  repeal  of  this  section  shall  not  in  any 
way  interfere  with  any  right  already  vested."  This  repeal 
opened  the  way  for  a  new  attack  upon  the  riparian  doctrine 


18  ELEMENTS     OF    WESTERN     WATER     LAW 

but  no  serious  attempt  has  been  made.  If  the  California 
Supreme  Court  could  be  induced  to  accept  the  ruling  of  the 
Nebraska  Supreme  Court  in  Crawford  v.  Hathaway,  the 
riparian  right  would  be  considered  abrogated  for  all  public 
land  not  entered  in  1887. 

The  Congressional  Desert  Land  Act  of  March  3,  1877, 
contains  the  following  language  in  one  of  its  provisos : 

And  all  surplus  water  over  and  above  such  actual  appropriation 
and  use,  together  with  the  water  of  all  lakes,  rivers  and  other  sources 
of  water  supply  upon  the  public  lands  and  not  navigable,  shall  remain 
and  be  held  free  for  the  appropriation  and  use  of  the  public  for 
irrigation,  mining,  and  manufacturing  purposes  subject  to  existing 
rights.  .  .  . 

This  language  was  construed  by  the  Supreme  Court  of 
Oregon  in  Hough  v.  Porter  (51  Ore.  318)  decided  January  5, 
1909,  as  follows : 

Construed,  then,  with  the  act  of  1866  and  other  provisions  of 
the  act  of  1877,  we  are  of  the  opinion  that  all  lands  settled  upon  after 
the  date  of  the  latter  act  were  accepted  with  the  implied  understanding 
that  (except  as  to  water  for  domestic  purposes)  the  first  to  appro- 
priate and  use  the  water  for  the  purpose  specified  in  the  act  should 
have  the  superior  right  thereto. 

Hough  v.  Porter  was  referred  to  by  the  United  States 
Supreme  Court  in  Boquillas  Cattle  Company  v.  Curtis  (213 
U.  S.  339)  decided  April  19,  1909.  The  case  involved  a  con- 
flict between  a  riparian  owner  and  an  appropriator  and  the 
Court  after  stating  that  the  riparian  doctrine  was  not  applic- 
able in  Arizona,  continued: 

The  opinion  that  we  have  expressed  makes  it  unnecessary  to 
decide  whether  lands  in  the  arid  regions  patented  after  the  act  of 
March  3,  1877  .  .  .  are  not  accepted  subject  to  the  rule  that 
priority  of  appropriation  gives  priority  of  right  by  virtue  of  that  act 
construed  with  Rev.  Stat.  2339.  The  Supreme  Court  of  Oregon  has 
rendered  a  decision  to  that  effect  on  plausible  grounds. 

The  Supreme  Court  of  Washington,  however,  has  refused 
to  consider  the  Hough  v.  Porter  rule  sufficiently  "plausible"  to 
follow..  In  Still  v.  Palouse  Irrigation  &  Power  Co.  (117  Pac. 
466)  decided  August  19,  1911,  the  Court  had  before  it  a  case 
somewhat  similar  to  Miller  &  Lux  v.  Madera  Canal  Co.,  ex- 
cept that  the  defendant  company  attempting  storage  was  also 
a  riparian  owner.  The  company  contended  for  the  rule  laid 
down  in  Hough  v.  Porter,  but  the  court  held  that  "the  act 
itself  manifestly  relates  only  to  the  reclamation  of  desert 
lands"  and  refused  to  apply  the  rule  as  the  lands  involved  had 
not  been  entered  under  the  Desert  Land  Act.  As  noted  above, 
the  Oregon  Supreme  Court  held  that  the  rule  applied  to  all 
public  land,  which  should  be  the  construction  if  the  decision 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          19 

was  rendered  on  "plausible  grounds".  The  Supreme  Courts 
of  California,  Montana,  North  Dakota  and  South  Dakota  (the 
remaining  riparian  right  states  to  which  the  Desert  Land  Act 
applies)  have  not  as  yet  been  asked  to  accept  the  rule  of 
Hough  v.  Porter  and  their  position  is  therefore  still  doubtful. 

Lateral  Limits. 

It  has  been  shown  previously  that  an  appropriator  can 
neither  divert  nor  store  flood  waters  when  such  might  result 
in  damage,  present  or  prospective,  to  a  riparian  owner.  Any 
large  project,  to  protect  itself,  must  therefore  purchase  the 
riparian  land  or  the  riparian  right  annexed  thereto — it  being 
well  settled  that  the  riparian  right  may  be  sold  apart  from  the 
land. 

The  generally  accepted  lateral  limit  of  riparian  land  is 
the  margin  of  the  watershed.  The  Supreme  Court  of  Oregon, 
however,  in  Jones  v.  Conn  (39  Ore.  30)  has  held  that  riparian 
lands  are  not  so  limited  but  extend  to  the  exterior  bound- 
aries regardless  of  the  watershed.  It  is  the  only  state  wherein 
a  riparian  owner,  under  the  claim  of  riparian  right,  may  divert 
the  water  of  a  stream  beyond  its  watershed.  The  general 
rule  is  based  on  the  idea  that  only  those  lands  which  border 
on  and  drain  into  a  stream  can  be  considered  riparian  thereto. 

In  two  cases  the  California  Supreme  Court  has  materi- 
ally restricted  the  lateral  limits  as  shown  by  the  following 
quotations : 

In  the  case  at  bar  the  stipulation  is  that  these  fourteen  quarter 
sections  were  granted  each  by  a  separate  patent,  each  patent  being 
based  upon  a  separate  entry,  and  these  fourteen  quarter  sections 
therefore  constitute  fourteen  distinct  tracts  of  land,  and  mere  contigu- 
ity cannot  extend  a  riparian  right  which  is  appurtenant  to  one  quarter 
section  to  another,  though  both  are  now  owned  by  the  same  person. 
(Boehmer  v.  Big  Rock  Irr.  Dist,  117  Cal.  27.) 

If  the  owner  of  a  tract  abutting  on  a  stream  conveys  to  another 
a  part  of  the  land  not  contiguous  to  the  stream,  he  thereby  cuts  off 
the  part  so  conveyed  from  all  participation  in  the  use  of  the  stream 
and  from  riparian  rights  therein,  unless  the  conveyance  declares  the 
contrary.  Land  thus  conveyed  and  severed  from  the  stream  can  never 
regain  the  riparian  right,  although  it  may  thereafter  be  reconveyed  to 
the  person  who  owns  the  part  abutting  on  the  stream,  so  that  the  two 
tracts  are  again  held  in  one  ownership.  (Anaheim  Union  Water  Co.  v. 
Fuller,  150  Cal.  331.) 

As  later  decisions  have  not  modified  the  above  rulings, 
they  may  be  considered  accepted  in  California.  The  Nebraska 
Supreme  Court,  in  Crawford  v.  Hathaway,  considered  this 
question  at  great  length  and  concluded : 

A  riparian  owner's  right  to  the  reasonable  use  of  water  exists 
solely  by  virtue  of  his  ownership  of  the  lands  over  or  by  which  the 


20  ELEMENTS     OF    WESTERN     WATER     LAW 

stream  flows.  It  is  obvious  that  his  right  cannot  be  enlarged  or 
extended  by  acquisition  of  title  to  lands  contiguous  to  the  riparian 
land;  nor  can  a  riparian  owner,  as  such,  rightfully  divert  to  non- 
riparian  lands  water  which  he  has  a  right  to  use  on  riparian  land,  but 
which  he  does  not  so  use.  ...  It  being  the  policy  of  the  govern, 
ment  to  dispose  of  its  public  domain  in  tracts  of  not  less  than  40  acres 
each,  why,  then,  may  it  not  be  said  that  riparian  rights  are  limited  to 
such  tracts,  even  though  several  of  them  may  be  joined  together  in 
one  certificate  of  purchase  or  instrument  of  conveyance?  It  is  not 
decided  that  such  should  be  the  rule  in  this  state,  as  it  is  deemed 
preferable  to  have  the  question  open  for  maturer  investigation  and 
consideration. 

The  Supreme  Court  of  Texas  in  Watkins  Land  Co.  v. 
Clements  (86  S.  W.  733)  decided  April  24,  1905,  held  that 
riparian  rights  "cannot  extend  beyond  the  original  survey  as 
granted  by  the  government." 

Were  it  not  for  the  cases  wherein  lower  riparian  owners 
(on  a  showing  of  possible  damage)  have  been  allowed  to 
stop  the  storage  of  flood  waters  by  either  riparian  owners  or 
appropriators,  those  interested  only  in  power  development 
might  be  strongly  in  favor  of  the  riparian  doctrine.  Under 
it  they  can  demand  that  the  waters  be  allowed  to  flow  to  even 
the  mouth  of  the  stream  if  a  power  site  there  exists.  The 
lower  sites,  however,  are  exceptional,  and  as  present  day  de- 
velopments necessitate  storage,  prospective  power  plants  are 
as  materially  affected  by  the  flood  water  decisions  as  irriga- 
tion projects.  If  the  riparian  doctrine  must  continue  in  force 
in  so  many  western  states,  some  relief  can  be  secured  by 
inducing  the  courts  to  further  restrict  the  lateral  limits.  A 
general  acceptance  of  the  suggestion  of  the  Nebraska  Supreme 
Court  that  riparian  rights  be  limited  to  forty  acre  tracts  would 
lessen  the  difficulties  in  the  way  of  the  newer  and  larger 
projects. 

The  forty  acre  suggestion  applies,  of  course,  to  public 
lands  only.  In  California  there  are  a  great  number  of  large 
Spanish  grants,  each  of  which  must  be  considered  a  single 
parcel,  and  to  such  the  suggestion  would  not  apply.  As 
those  grants  often  extend  from  watershed  to  watershed,  they 
contain  large  areas  riparian  to  streams  crossing  them.  While 
such  a  grant  remains  in  a  single  ownership,  the  proprietor 
thereof,  under  the  decisions  cited,  practically  controls  the 
streams  as  far  as  appropriators  are  concerned. 

In  the  quotation  from  Anaheim  Union  Water  Company 
v.  Fuller,  above,  it  is  stated  that  in  a  partition  of  a  riparian 
tract  the  part  distant  from  the  stream  loses  its  riparian  right 
"unless  the  conveyance  declares  the  contrary".  A  number  of 


RIPARIAN     RIGHTS     IN    THE     WESTERN     STATES          21 

Spanish  grants  crossed  by  streams  are  now  being  subdivided, 
and  the  deeds  are  so  drawn  that  the  various  parcels  share  in 
the  riparian  right,  regardless  of  proximity  to  the  stream.  It 
is  well  settled  that  the  parcels  so  conveyed  retain  the  riparian 
right  among  themselves,  but  the  western  courts  have  not  yet 
directly  passed  upon  the  question  as  to  whether  the  owner  of 
such  a  parcel,  not  touching  the  stream,  can  be  considered  to 
possess  a  riparian  right  as  against  an  appropriator  or  riparian 
owner  outside  the  original  grant.  Mr.  Wiel,  in  the  third  edi- 
tion of  his  splendid  work  on  "Water  Rights  in  the  Western 
States",  raises  this  question  and,  after  an  exhaustive  study  of 
the  cases  bearing  on  the  point,  concludes  that  such  parcels 
not  bordering  upon  the  stream  cannot  be  considered  riparian 
when  in  conflict  with  rights  outside  of  the  grant.  The  con- 
clusion is  certainly  based  on  sound  reasoning  and  conforms 
to  the  basic  idea  that  only  lands  bordering  upon  a  stream  are 
riparian  thereto.  This  question  will  undoubtedly  be  raised  in 
the  near  future  and  the  hope  of  all  appropriators  is  that  the 
courts  will  accept  Mr.  Wiel's  conclusion.* 

In  those  instances  where  the  land  along  the  stream  below 
a  reservoir  site  was  secured  under  the  public  land  laws,  the 
maximum  limits  of  riparian  lands  (in  California,  Nebraska 
and  Texas — the  public  lands  in  the  last  being  state  lands  only) 
may  be  determined  by  an  examination  of  the  land  office 
records,  as  only  those  forties  which  touch  the  stream,  or  were 
included  with  such  forties  in  the  original  patent,  can  be  con- 
sidered riparian.  Where  the  stream  passes  through  lands 
which  were  part  of  a  Spanish  grant  in  California,  abstracts  of 
title  must  be  examined  in  order  to  ascertain  the  least  parcel 
touching  the  stream  at  one  time  in  a  single  ownership.  In 
the  riparian  states,  other  than  California,  Nebraska  and  Texas, 
the  ordinary  assessor's  map  showing  ownership  along  the 
streams  will  give  the  riparian  lands — they  being  those  tracts 
in  single  ownership  not  extending  beyond  the  watershed. 
The  last  statement  must  be  modified  for  Oregon,  as  there  the 
riparian  land  is  not  limited  to  the  watershed. 

Riparian  Right  Restricted  to  Riparian  Land. 
On  account  of  the  riparian  right  being  so  superior (  in  the 
rparian  right  states)  to  that  of  appropriation,  there  is  a  popu- 
lar idea  that  a  riparian  proprietor  actually  owns  the  water 
and  is  not  limited  to  its  use  on  his  riparian  land.  The  courts, 
however,  have  consistently  held  to  the  contrary,  as  illustrated 

*This  paragraph  is  as  it  appeared  in  the  first  edition.  The  question  has 
been  presented  to  the  Supreme  Court  of  California  in  the  case  of  Miller  & 
Lux  vs.  J.  G.  James  Co.,  now  (Dec.  1,  1917)  pending. 


22  ELEMENTS     OP     WESTERN     WATER     LAW 

by  the  second  quotation  from  Crawford  v.  Hathaway  above. 
Of  the  many  cases  thus  holding,  one  presenting  unusual 
conditions  is  Duckworth  v.  Watsonville  Water  &  Light  Com- 
pany (150  Cal.  520). 

The  Watsonville  Company,  in  order  to  protect  its  divers- 
ion of  the  waters  of  Pinto  Lake  to  Watsonville,  had  purchased 
either  the  riparian  land  or  the  riparian  right  for  all  the  lands 
bordering  on  the  lake.  Duckworth  leased  a  parcel  of  such 
riparian  land,  posted  a  notice  of  appropriation,  initiated  his 
diversion  work  and  brought  an  action  to  have  his  water  right 
determined  as  against  the  company.  The  company  claimed 
that  by  the  purchase  of  the  riparian  lands  and  the  riparian 
rights,  including  those  belonging  to  the  parcel  occupied  by 
Duckworth,  it  was  entitled  to  all  of  the  waters  of  the  lake. 
The  following  extract  from  the  opinion  clearly  presents  the 
Court's  view : 

We  have  said  that  the  water  company  is  entitled  to  a  judgment 
protecting  its  riparian  right,  although  it  has  not  used,  and  does  not 
immediately  propose  to  use,  the  water  on  its  riparian  land.  This  rule 
does  not  apply  to  any  right  which  it  has  acquired  by  appropriation  or 
use  upon  other  lands,  and  this  appears  to  be  the  source  of  the  right 
which  it  has  been  exercising.  Such  right  depends  upon  use  and  ceases 
with  disuse.  (Civ.  Code,  1411.)  It  extends  only  to  the  water  actually 
taken  and  used.  The  consequence  is  that,  so  far  as  the  protection  of 
this  right  and  the  water  necessary  to  supply  this  use  are  concerned, 
the  water  company  is  not  entitled  to  prevent  an  appropriation  or  use 
by  others  of  the  surplus  of  waters  of  the  lake,  if  there  is  any. 

Attention  has  been  called  to  language  used  by  the  Nevada 
Supreme  Court  in  Van  Sickle  v.  Haines,  and  by  the  California 
Supreme  Court  in  Lux  v.  Haggin,  which  characterized  the 
doctrine  of  appropriation  as  one  certain  to  result  in  monopoly. 
The  passage  quoted  immediately  above  tells  another  story. 

Reasonable  Use  Among  Riparian  Owners. 
As  stated  in  quoting  from  Lux  v.  Haggin  above,  each  ripa- 
rian owner  is  entitled  to  a  reasonable  use  of  the  water  of  the 
stream,  and  such  reasonable  use  is  a  question  of  fact  depend- 
ing upon  the  circumstances  of  each  particular  case.  In  the 
recent  case  of  Half  Moon  Bay  Land  Co.  v.  Cowell  (173 
Cal.  543),  decided  October  17,  1916,  the  California  Supreme 
Court  included  among  the  many  points  to  be  considered  the 
length  of  the  stream,  the  volume  of  water  in  it,  the  extent  of 
each  ownership  along  the  banks,  the  character  of  the  soil 
owned  by  each  contestant,  the  area  sought  to  be  irrigated  by 
each,  the  practicability  of  irrigation  of  the  lands  of  the  re- 
spective parties,  the  expense  thereof  and  the  comparative 
profit  of  the  different  uses  which  could  be  made  of  the  water 


RIPARIAN     RIGHTS     IN     THE     WESTERN     STATES          23 

on  the  land.  The  Court  held  in  the  Half  Moon  Bay  case 
"that  when  the  water  is  insufficient  for  all  the  land  or  for  all 
of  the  uses  to  which  it  might  be  applied  thereon,  and  there  is 
enough  only  for  that  use  which  is  most  valuable  and  profit- 
able, the  shares  may  properly  be  limited  to  and  measured  by 
the  quantity  sufficient  for  that  use,  and  the  proportions  fixed 
accordingly".  On  account  of  the  steep  hillsides  involved  in 
the  case,  the  trial  court  found  only  a  small  portion  of  the 
riparian  lands  were  suitable  for  profitable  irrigation,  and  the 
finding  was  upheld. 

It  is  occasionally  claimed  that  one  using  water  for  the 
development  of  electric  power  upon  land  riparian  to  the 
stream  cannot  rest  for  such  use  upon  the  riparian  doctrine. 
In  Mentone  Irrigation  Co.  v.  Redlands,  etc.  Co.  (155  Cal. 
323)  the  Supreme  Court  of  California,  in  answering  this 
claim,  said: 

The  use  of  the  water  in  its  passage  through  his  land  to  operate 
a  power  plant  thereon  is  as  clearly  within  his  rights  as  is  his  right 
to  operate  a  mill  thereon  with  which  to  grind  grain  or  to  operate  any 
other  machinery,  than  which  there  is  no  more  ancient  or  well-estab- 
lished feature  of  riparian  rights. 

Riparian  Rights  to  Navigable  Waters. 

The  California  Supreme  Court  in  the  early  case  of  Heil- 
bron  v.  Fowler  Switch  Canal  Co.  (75  Cal.  432),  decided  March 
29,  1888,  said: 

We  see  no  occasion  to  discuss  the  question  as  to  whether  the 
river  is  navigable  or  not.  In  either  event  the  result  would  be  the 
same.  The  riparian  owner  on  a  non-tidal,  navigable  stream  has  all  the 
rights  of  a  riparian  owner  not  inconsistent  with  the  public  easement. 

The  above  statement  can  be  considered  to  have  the  force 
of  a  dictum  only,  as  the  stream  in  question  (Kings  River) 
was  said  to  be  not  navigable  and  the  particular  point  was  not 
argued.  The  Supreme  Court  of  Washington  in  State  v. 
Superior  Court  of  Grant  County  (126  Pac.  945),  decided^ 
October  10,  1912,  after  a  careful  consideration  of  the  ques-' 
tion  decided  that  riparian  rights  to  the  use  of  water  do  not 
attach  to  lands  bordering  on  navigable  waters.  Just  how  far 
other  western  states  will  go  in  following  Washington  remains 
for  their  Supreme  Courts  to  decide.  Where  the  constitutional 
declaration  of  state  ownership  of  beds  and  shores  is  similar  to 
that  of  Washington  the  decision  will  have  very  great  weight. 

Summary  of  Principles. 

The  riparian  doctrine  has  been  abrogated  in  the  seven 
strictly  arid  states  and  has  been  adopted  in  the  ten  semi- 


24  ELEMENTS     OF    WESTERN    WATER     LAW 

humid  states  of  the  irrigation  zone.  Of  the  ten,  it  has  been 
held  in  Nebraska  that  the  state  water  appropriation  act 
annulled  the  riparian  rights  for  public  lands  then  unentered, 
and  in  Oregon  that  the  congressional  desert'land  act  did  like- 
wise. 

The  doctrine  restricts  the  right  to  riparian  lands  and 
allows  a  reasonable  use  of  water  to  all  riparian  owners,  the 
measure  of  which  will  depend  upon  the  conditions  of  the  par- 
ticular case.  The  right  is  not  created  by  use  and  does  not 
cease  with  disuse.  As  between  a  riparian  owner  and  an  ap- 
propriator,  the  former  is  not  limited  by  any  measure  of 
reasonableness,  and  may  restrain  any  diversion  or  interfer- 
ence with  the  flow  (including  flood  waters)  by  the  latter 
which  may  result  in  damage  to  his  riparian  land. 

Except  in  Oregon,  riparian  lands  are  limited  to  the  water- 
shed. In  California,  Nebraska  and  Texas  the  right  is  further 
limited  to  the  original  tract  granted  by  the  government,  and 
in  California  still  further  limited  to  the  smallest  tract  at  one 
time  in  a  single  ownership. 

It  is  not  improbable  that  the  lateral  limits  may  be  ulti- 
mately limited  in  some  states  to  the  forty  acre  tract  crossed 
by  the  stream,  and  that  other  states  may  follow  Nebraska 
and  Oregon  in  their  construction  of  state  and  federal  stat- 
utes. It  is  certain,  however,  that  statutes  annulling  riparian 
rights  existing  prior  to  their  passage  are  clearly  unconstitu- 
tional. All  such  changes  in  the  doctrine  must  be  made  by  the 
courts  and  not  the  legislatures. 


CHAPTER  III 
LAW  OF  UNDERGROUND  WATERS 

According  to  the  Thirteenth  Census  the  source  of  water 
supply  for  433,630  acres  of  the  total  of  13,739,500  acres  irri- 
gated in  1909  in  the  western  states  was  wells.  Of  this  area 
332,410  acres  were  irrigated  from  wells  in  California,  for 
which  state  the  total  acreage  irrigated  was  2,664,100  acres. 
Although  the  area  so  irrigated  is  but  a  small  percentage  of 
the  total,  it  is  constantly  increasing.  The  surface  supply  is 
being  rapidly  exhausted  and  future  development  in  certain 
sections  must  rest  entirely  upon  the  underground  supply.  This 
fact  is  so  well  recognized  in  California  that  the  larger  power 
companies  have  initiated  a  campaign  of  education  to  interest 
farmers  in  the  use  of  electric  power  for  pumping.  The  gas 
engine  and  pump  manufacturers  are  equally  interested,  and 
through  their  catalogues  are  making  an  effective  argument 
for  the  introduction  of  pumping  plants  for  irrigation. 

There  are  two  classes  of  natural  underground  waters — 
percolating  waters  and  those  that  flow  in  a  defined  subter- 
ranean channel.  Percolating  waters  have  been  well  designated 
"vagrant,  wandering  drops  moving  by  gravity  in  any  and 
every  direction  along  the  line  of  least  resistance". 

Illustrations  of  underground  waters  moving  in  a  defined 
channel  are  very  familiar,  and  the  so-called  "sub-flow"  of 
streams  is  especially  common.  In  the  previous  chapter  the 
case  of  Miller  v.  Bay  Cities  Water  Company  was  considered 
at  some  length.  Although  the  court  therein  discusses  the 
California  cases  on  percolating  waters,  Miller's  source  of 
supply  was  clearly  a  "subterranean  channel",  and  his  right  the 
same  as  that  of  a  riparian  owner  on  a  surface  stream.  Waters 
in  subterranean  channels  have  always  been  considered  sub- 
ject to  the  same  legal  principles  as  the  waters  of  surface 
streams.  In  most  jurisdictions  underground  waters  are  pre- 
sumed to  be  percolating,  and  the  burden  of  proving  the 

25 


26  ELEMENTS     OF     WESTERN     WATER    LAW 

existence  of  a  known  and  denned  channel  is  on  the  one  so 
asserting. 

The  common  law  rule  is  that  percolating  waters  belong 
to  the  owner  of  the  surface  and  such  rule  is  generally  ac- 
cepted except  as  later  stated  in  this  chapter.  An  early  Cali- 
fornia case — Hanson  v.  McCue  (42  Cal.  303) — adopts  the  rule 
in  the  following  language : 

Water  filtrating  or  percolating  in  the  soil  belongs  to  the  owner 
of  the  freehold — like  rocks  and  minerals  found  there.  It  exists  there 
free  from  usufructuary  right  of  others,  which  is  to  be  respected  by 
the  owner  of  an  estate  through  which  a  defined  stream  of  water  is 
found  to  flow.  The  owner  may  appropriate  the  percolation  and  nitra- 
tions as  he  may  choose,  and  turn  them  to  profit  if  he  can. 

It  must  be  appreciated  that  the  task  of  showing  the  dif- 
ference between  the  two  classes  of  underground  waters  in  a 
given  case  is  very  difficult.  It  means  the  introduction  of 
much  expert  testimony  with  the  usual  conflict  in  scientific 
views.  An  excellent  illustration  is  the  pioneer  case  of  Los 
Angeles  v.  Pomeroy  (124  Cal.  597),  wherein  the  city  sought 
to  condemn  land  in  the  San  Fernando  Valley  for  use  in  con- 
nection with  its  water  supply  system  from  the  Los  Angeles 
River.  The  city  contended  that  the  waters  under  the  surface 
of  the  tract  in  question  composed  the  subterranean  flow  of  the 
Los  Angeles  River  and  therefore  belonged  to  it  under  its 
"pueblo  right" — a  right  under  the  Mexican  law  giving  the 
pueblo  paramount  interest  in  the  waters  of  streams.  Pomeroy 
claimed  that  such  waters  were  but  percolating  waters  and 
therefore  belonged  to  him  as  owner  of  the  soil.  Very  elab- 
orate models  and  relief  maps  were  introduced  in  connection 
with  the  expert  testimony  on  each  side.  The  court  decided 
that  the  evidence  showed  the  existence  of  a  well  denned 
channel  and  that  the  underground  waters  were  therefore  part 
of  the  flow  of  the  Los  Angeles  River  and  not  percolating 
waters. 

California  and  Washington  are  the  only  western  states 
which  have  thus  far  departed  from  the  common  law  rule  of 
percolating  waters.  In  the  now  celebrated  case  of  Katz  v. 
Walkinshaw  (141  Cal.  116)  the  plaintiffs  sought  "to  enjoin 
defendant  from  drawing  off  and  diverting  water  from  an 
artesian  belt,  which  is  in  part  on  or  under  the  premises  of 
plaintiffs,  and  to  the  water  of  which  they  have  sunk  wells" 
for  water  for  domestic  purposes  and  for  irrigating  their  lands 
overlying  the  artesian  water.  The  defendant  diverted  "the 
water  for  sale,  to  be  used  on  lands  of  others  distant  from  the 
saturated  belt".  The  plaintiffs  contended  that  the  subsurface 
water  constituted  an  underground  stream  and  that  they  were 


LAW     OF     UNDERGROUND     WATERS  27 

riparian  thereto.  The  defendant  on  the  contrary  alleged  that 
the  water  rising  in  her  wells  was  percolating  water  and  there- 
fore her  property.  The  original  opinion  of  the  Supreme  Court 
in  the  case,  written  by  Mr.  Justice  Temple,  was  handed  down 
November  7,  1902.  The  court  therein  held  that  the  artesian 
body  was  percolating  water  and  not  an  underground  water 
course  to  which  riparian  rights  could  attach.  Instead  of 
holding,  as  the  lower  court  had  done,  that  the  defendant  could 
not  be  enjoined,  the  Supreme  Court  after  citing  the  authori- 
ties and  dwelling  on  the  difference  in  conditions  "in  a  country 
like  Southern  California,  where  the  relative  importance  of 
percolating  water  and  water  flowing  in  definite  water  courses 
is  greatly  changed",  concluded  that  a  different  rule  was  re- 
quired and  established  the  new  rule  of  reasonable  use. 

A  rehearing  was  granted  in  order  that  additional  argu- 
ments might  be  presented  by  those  "not  parties  to  the  action, 
but  vitally  interested  in  the  principle  involved",  and  the  final 
opihion,  written  by  Mr.  Justice  Shaw,  was  handed  down  on 
November  28,  1903.  The  opinion  is  very  important  on  account 
of  its  treatment  of  the  common  law,  in  addition  to  the  modifi- 
cation of  the  law  of  percolating  waters,  as  shown  by  the 
following  extract : 

The  idea  that  the  doctrine  contended  for  by  the  defendant  is  a 
part  of  the  common  law  adopted  by  our  statute,  and  beyond  the  power 
of  the  court  to  change  or  modify,  is  founded  upon  the  misconception 
of  the  extent  to  which  the  common  law  is  adopted  by  such  statutory 
provisions,  and  a  failure  to  observe  some  of  the  rules  and  principles 
of  the  common  law  itself.  In  Crandall  v.  Woods,  8  Cal.  143,  the  court 
approved  the  following  rule,  quoting  from  the  dissenting  opinion  of 
Bronson,  J.,  in  Starr  v.  Child,  20  Wend.  149:  "I  think  no  doctrine 
better  settled  than  that  such  portions  of  the  law  of  England  as  are 
not  adapted  to  our  condition  form  no  part  of  the  law  of  this  state. 
This  exception  includes  not  only  such  laws  as  are  inconsistent  with 
the  spirit  of  our  institutions,  but  such  as  are  framed  with  special 
reference  to  the  physical  condition  of  a  country  differing  widely  from 
our  own.  It  is  contrary  to  the  spirit  of  the  common  law  itself  to 
apply  a  rule  founded  on  a  particular  reason  to  a  case  where  that 
reason  utterly  fails." 

(It  is  a  noteworthy  point  that  the  language  of  Mr.  Justice 
Bronson  quoted  by  Mr.  Justice  Shaw,  was  also  quoted  by  Mr. 
Justice  Ross  in  his  dissenting  opinion  in  Lux  v.  Haggin, 
wherein  he  argued  that  the  common  law  rule  of  riparian 
rights,  being  unsuited  to  the  existing  conditions,  should  be 
rejected  in  California.) 

After  other  forcible  statements  in  regard  to  the  adapt- 
ability and  power  of  modification  of  the  common  law,  the 
opinion  describes  at  considerable  length  the  semi-arid  con- 


28  ELEMENTS     OF    WESTERN     WATER     LAW 

ditions  existing  in  a  large  part  of  California  ("in  almost  all 
of  the  southern  half  of  it"),  the  insufficiency  of  the  natural 
streams  as  sources  of  irrigation  supply,  and  the  absolute  need 
of  the  utilization  of  the  underground  waters.  Following  the 
statement  that  "The  claim  that  the  doctrine  stated  by  Mr. 
Justice  Temple  is  contrary  to  all  the  decisions  of  this  court 
is  not  sustained  by  an  examination  of  the  cases",  it  proceeds 
to  analyze  the  former  California  cases  supposedly  upholding 
the  common  law  rule  of  percolating  waters,  beginning  with 
Hanson  v.  McCue,  and  concludes: 

In  view  of  this  conflicting  and  uncertain  condition  of  the  authori- 
ties it  cannot  be  successfully  claimed  that  the  doctrine  of  absolute 
ownership  is  well  established  in  this  State.  It  is  proper  to  state  that 
in  all  the  opinions  which  have  so  readily  quoted  and  approved  the 
supposed  common-law  rule,  that  injuries  from  interference  with  perco- 
lating waters  were  too  obscure  in  origin  and  cause,  too  trifling  in 
extent,  and  relatively  of  too  little  importance,  as  compared  to  mining 
industries  and  the  wants  of  large  cities,  to  justify  or  require  the 
recognition  by  the  courts  of  any  correlative  rights  in  such  waters, 
or  the  redress  of  such  injuries,  there  has  been  no  notice  at  all  taken 
of  the  conditions  existing  here,  so  radically  opposite  to  those  prevail- 
ing where  the  doctrine  arose.  It  is  also  to  be  observed  that  in  some 
instances  in  the  eastern  states,  mentioned  in  the  former  opinion  in 
this  case,  the  injustice  from  the  diversion  of  percolating  waters  has 
been  so  glaring  and  so  extensive  that  the  court  there  was  compelled 
to  depart  from  its  previously  decided  cases  and  recognize  the  rights 
of  adjoining  owners. 

The  new  rule  established  by  the  decision  is  well  shown 
in  the  following  paragraphs : 

In  controversies  between  an  appropriator  for  use  on  distant  land 
and  those  who  own  land  overlying  the  water-bearing  strata,  there  may 
be  two  classes  of  such  land  owners:  those  who  have  used  the  water 
on  their  land  before  the  attempt  to  appropriate,  and  those  who  have 
not  previously  used  it,  but  who  claim  the  right  afterward  to  do  so. 
Under  the  decision  in  this  case  the  rights  of  the  first  class  of  land 
owners  are  paramount  to  that  of  one  who  takes  the  water  to  distant 
land;  but  the  land  owner's  right  extends  only  to  the  quantity  of  water 
that  is  necessary  for  use  on  his  land,  and  the  appropriator  may  take 
the  surplus.  As  to  those  land  owners  who  begin  the  use  after  the 
appropriation,  and  who,  in  order  to  obtain  the  water,  must  restrict  or 
restrain  the  diversion  to  distant  lands  or  places,  it  is  perhaps  best 
not  to  state  a  positive  rule  until  a  case  arises.  Such  rights  are  limited 
at  most  to  the  quantity  necessary  for  use,  and  the  disputes  will  not 
be  so  serious  as  those  between  rival  appropriators. 

Disputes  between  overlying  land  owners,  concerning  water  for 
use  on  the  land,  to  which  they  have  an  equal  right,  in  cases  where  the 
supply  is  insufficient  for  all,  are  to  be  settled  by  giving  to  each  a  fair 
and  just  proportion.  And  here  again  we  leave  for  future  settlement 
the  question  as  to  the  priority  of  rights  between  such  owners  who 


LAW     OF     UNDERGROUND     WATERS  29 

begin  the  use  of  the  water  at  different  times.    The  parties  interested 
in  the  question  are  not  before  us. 

Katz  v.  Walkinshaw  has  been  consistently  followed  in 
all  subsequent  percolating  water  cases  arising  in  California. 
As  far  as  the  establishment  of  further  rules  is  concerned,  the 
most  important  of  the  subsequent  cases  is  Burr  v.  Maclay 
Rancho  Water  Company  (154  Cal.  428)  decided  in  1908,  as 
the  question  left  undecided  in  Katz  v.  Walkinshaw  was  pre- 
sented. The  plaintiff  therein  "sued  to  enjoin  the  defendant 
company  from  pumping  water  from  its  wells  on  land  adjoin- 
ing that  of  plaintiff  and  transporting  such  water  to  distant 
lands  for  irrigation".  The  plaintiff's  land  consists  of  three 
tracts— blocks  153,  190,  and  191  of  the  Maclay  Rancho  Ex- 
Mission  San  Fernando.  The  three  tracts  overly  the  body  of 
percolating  water.  Plaintiff's  wells  are  on  block  191  which 
is  an  irrigated  orchard.  For  a  short  time  part  of  block  190 
was  also  irrigated.  The  right  is  claimed  for  the  irrigation  of 
all  of  blocks  153  and  190  as  well  as  the  present  irrigated  block 
191.  Defendant's  wells  are  on  block  192  and  while  its  pumps 
are  being  operated  "it  is  impossible  for  the  plaintiff  to  obtain 
any  water  from  his  wells  by  means  of  his  pumps". 

In  the  consideration  of  the  case  the  Court  comments  on 
the  contrast  between  the  new  doctrine  of  percolating  waters 
and  the  rule  of  riparian  rights  in  regard  to  true  conservation 
as  follows : 

It  is  not  the  policy  of  the  law  to  permit  any  of  the  available 
waters  of  the  country  to  remain  unused,  or  to  allow  one  having  the 
natural  advantage  of  a  situation  which  gives  him  a  legal  right  to 
water  to  prevent  another  from  using  it,  while  he  himself  does  not 
desire  to  do  so.  The  established  and  settled  law  of  riparian  rights  in 
running  streams,  which  have  become  vested  rights,  may  compel  a 
different  rule  with  regard  to  such  waters  in  some  instances,  but  these 
rules  of  law  do  not,  of  necessity,  control  rights  in  percolating  waters. 

Certain  headnotes  used  in  reporting  the  case  so  well  set 
forth  the  principles  established  that  they  are  quoted  in  full : 

Different  owners  of  separate  tracts  of  land,  situated  over  common 
strata  of  percolating  water,  may,  each  upon  his  own  lands,  take  by 
means  of  wells  and  pumps  from  the  common  strata,  such  quantity  of 
water  as  may  be  reasonably  necessary  for  beneficial  use  upon  his 
land,  or  his  reasonable  proportion  of  such  water,  if  there  is  not  enough 
for  all;  but  one  cannot,  to  the  injury  of  the  other,  take  such  waters 
from  the  strata  and  conduct  it  to  distant  lands  not  situated  over  the 
same  water-bearing  strata. 

As  between  an  appropriator  of  percolating  water  for  use  on 
distant  land,  and  an  owner  of  land  overlying  the  water-bearing  strata, 
who  was  using  the  water  on  his  land  before  the  attempt  to  appropriate, 
the  rights  of  the  overlying  landowner  are  paramount.  Such  rights, 


30  ELEMENTS     OF    WESTERN     WATER    LAW 

however,  extend  only  to  the  quantity  of  water  that  is  necessary  for 
use  on  his  land,  and  the  appropriator  may  take  the  surplus. 

After  an  appropriator  of  water  from  a  common  water-bearing 
strata  has  begun  to  take  water  therefrom  to  distant  lands  not  situated 
over  the  strata,  for  use  on  such  distant  lands,  the  owner  of  other 
overlying  land  upon  which  he  has  never  used  the  water,  may  invoke 
the  aid  of  a  court  of  equity  to  protect  him  in  his  right  to  thereafter 
use  such  water  on  his  land,  and  thus  prevent  the  appropriator  from 
defeating  his  right,  or  acquiring  a  paramount  right  by  adverse  use,  or 
by  lapse  of  time.  Such  an  appropriation  for  distant  lands  is  subject 
to  the  reasonable  use  of  the  water  on  lands  overlying  the  supply, 
particularly  in  the  case  of  persons  who  have  acquired  the  lands 
because  of  these  natural  advantages. 

As  against  the  owners  of  such  overlying  lands,  either  those  who 
have  used  the  water  on  their  lands  before  the  attempt  to  appropriate, 
or  those  who  have  not  previously  used  it,  but  who  claim  the  right 
afterwards  to  do  so,  the  appropriator  for  use  on  distant  land  has  the 
right  to  any  surplus  that  may  exist.  If  the  adjoining  overlying  owner 
does  not  use  the  water,  the  appropriator  may  take  all  the  regular 
supply  to  distant  land  until  such  landowner  is  prepared  to  use  it  and 
begins  to  do  so. 

In  controversies  between  the  owners  of  such  overlying  lands,  and 
an  appropriator  of  the  water  for  use  on  distant  lands,  the  court  has 
the  power  to  make  reasonable  regulations  for  the  use  of  the  water  by 
the  respective  parties,  fixing  the  times  when  each  may  take  it  and 
the  quantity  to  be  taken,  provided  they  be  adequate  to  protect  the 
person  having  the  paramount  right  in  the  substantial  enjoyment  of 
that  right  and  to  prevent  its  ultimate  destruction.  In  the  present  case 
the  judgment  is  directed  to  be  modified  in  accordance  with  these  rules. 

Although  the  new  rule  of  percolating  waters  is  firmly 
established  in  California,  Washington  is  the  only  other 
western  state  in  which  it  has  been  followed.  In  Patrick  v. 
Smith  (134  Pac.  1076),  decided  September  15,  1913,  the 
Supreme  Court  of  Washington,  in  accepting  the  new  rule 
said : 

The  principles  of  natural  justice  and  equity  demand  the  recogni- 
tion of  correlative  rights  in  percolating  subterranean  waters  so  that 
each  landowner  may  use  such  water  only  in  a  reasonable  manner  and 
to  a  reasonable  extent  upon  his  own  land  and  without  undue  interfer- 
ence with  the  rights  of  other  landowners  to  a  like  use  and  enjoyment 
of  waters  percolating  beneath  their  lands. 

The  Supreme  Court  of  Colorado  in  Smith  Canal  v.  Col- 
orado Ice  Co.  (82  Pac.  940)  after  referring  to  Katz  v.  Walk- 
inshaw,  said: 

The  law  regulating  ownership  of  percolating  waters  in  the  arid 
states  is  now  of  great— as  time  passes  it  will  be  still  greater— impor- 
tance; and,  until  a  proper  case  is  presented  calling  for  it,  we  decline 
to  announce  the  rule  applicable  to  our  local  conditions. 


LAW     OF     UNDERGROUND     WATERS  31 

The  Supreme  Court  of  Idaho  in  Le  Quime  v.  Chambers 
(98  Pac.  415),  dealing  with  the  appropriation  of  spring  waters 
commented  on  the  establishment  of  the  new  rule  in  Cali- 
fornia, but,  as  it  considered  the  law  of  underground  waters 
not  necessary  to  the  case  before  it,  did  not  follow  it.  In  the 
later  Idaho  case  of  Bower  v.  Moorman  (147  Pac.  496)  the 
Court  held  that  under  the  Idaho  statutes  percolating  waters 
are  subject  to  the  rule  of  prior  appropriation  in  the  same  way 
that  the  waters  of  streams  are.  Idaho  is  therefore  in  a  class 
by  itself — it  recognizes  neither  the  common  law  rule  of  per- 
colating waters  nor  the  new  California  rule  of  correlative 
rights,  but  applies  the  rule  of  prior  appropriation,  "the  first 
in  time  is  first  in  right". 

As  stated  in  McClintock  v.  Hudson  (141  Cal.  275),  the 
new  rule  regarding  percolating  water  "makes  it  to  a  great  ex- 
tent immaterial  whether  the  waters  in  this  land  were  or  were 
not  a  part  of  an  underground  stream",  provided  the  with- 
drawal of  such  waters  by  defendant  can  be  shown  to  sub- 
stantially affect  the  source  of  supply — well  or  stream — of 
plaintiff.  The  need  of  distinguishing  between  the  two  classes 
of  underground  waters  still  exists  in  all  the  western  states 
except  California,  Idaho  and  Washington,  and  there  the  prob- 
lem of  proving  the  alleged  damage  to  a  source  of  supply 
remains  and  is  generally  a  difficult  one. 

Statutes  Regulating  Artesian  Wells. 

As  shown  above,  artesian  waters  are  classed  as  perco- 
lating waters.  The  great  potential  worth  of  such  wells  is  so 
evident  that  a  number  of  western  states  have  passed  statutes 
declaring  an  artesian  well  not  equipped  with  such  mechanical 
appliances  as  will  effectively  control  the  flow  from  the  well  to 
be  a  public  nuisance,  and  providing  in  more  or  less  detail  for 
the  public  regulation  of  artesian  wells.  In  1907,  in  the  case  of 
Ex  parte  Elam,  6  Cal.  App.  233,  the  California  District  Court 
of  Appeal  upheld  a  California  statute  approved  March  6th, 
1907,  providing  for  the  prevention  of  waste  from  artesian 
wells  and  prescribing  penalties  therefor.  As  the  doctrine  of 
correlative  rights  regarding  the  use  of  percolating  waters  is 
recognized  in  California,  it  was  expected  that  the  court  would 
so  hold. 

A  far  more  interesting  case  than  the  Elam  case  is  Eccles 
v.  Ditto,  167  Pac.  726,  decided  September  13th,  1917,  by  the 
Supreme  Court  of  New  Mexico.  A  New  Mexico  statute 
authorizes  the  Artesian  Well  Supervisor  of  each  county  to 
repair  wells,  the  waters  of  which  are  running  to  waste,  and 
to  bring  suit  if  necessary  to  collect  the  expenses  of  such  re- 


32  ELEMENTS     OF     WESTERN     WATER     LAW 

pairs,  which  expenses  become  a  lien  upon  the  land.  The 
Eccles  case  is  said  to  be  more  interesting  than  the  Elam  case 
for  the  reason  that  New  Mexico  still  follows  the  common  law- 
rule  of  percolating  waters.  In  upholding  the  validity  of  the 
New  Mexico  statute  in  the  Eccles  case,  however,  the  Su- 
preme Court  did  not  discuss  the  question  of  the  ownership 
of  percolating  waters,  but  rested  on  the  argument  that  the 
statute  is  a  proper  exercise  of  police  power  to  abate  nuisances. 
The  opinion  cites  many  cases  from  eastern  states  upholding 
the  validity  of  statutes  designed  to  prevent  the  waste  of  oil 
and  gas.  In  commenting  upon  the  New  Mexico  statute,  the 
Court  said  (p.  728)  : 

There  are  two  justifying  reasons  for  the  enactment  of  the  statute 
under  consideration  by  the  legislature  of  this  state,  the  first  being 
the  necessity  of  using  water  for  irrigation  and  the  limited  quantity  of 
water  available.  The  artesian  waters  in  a  given  district  come  from 
the  same  source,  and  are  obtained  by  sinking  wells  to  the  common 
basin,  thereby  enabling  the.  water  to  find  its  way  to  the  surface. 
Necessarily,  the  waste  of  water  derived  from  the  common  source  of 
supply  diminishes  the  amount  of  water  available  for  legitimate  uses, 
and  hence  works  an  injury  and  a  detriment  to  the  general  public 
desiring  to  make  use  of  such  waters.  The  second  reason  is  that 
permitting  the  water  to  run  to  waste  in  large  quantities  results  in  the 
"water  logging"  of  lands,  and  destroys  its  productiveness.  In  the 
artesian  belt  in  the  Pecos  Valley,  it  has  been  found  necessary  to  con- 
struct drains  at  enormous  expense  to  carry  away  the  waters  which 
find  their  way  to  the  lower  lands.  Hence  we  find  ample  justification 
for  the  legislative  act  regulating  the  construction  and  use  of  such  wells, 
thereby  preventing  the  unnecessary  waste  of  water. 

Contrast  of  the  California  Rules  of    Percolating  Waters  and 
of  Riparian  Rights. 

The  owner  of  land  overlying  a  body  of  percolating  water 
corresponds  to  a  riparian  owner  on  a  surface  stream,  and  an 
appropriator  of  percolating  waters  for  use  on  distant  Lands 
(that  is,  not  overlying)  corresponds  to  an  appropriator  of 
surface  waters  for  use  on  non-riparian  lands.  Under  the  rule 
of  riparian  rights  the  riparian  owner  may  perpetually  enjoin 
the  diversion  or  storage  of  the  waters  of  a  stream  when  such 
diversion  is  or  may  be  of  injury  to  him;  and  in  the  consid- 
eration of  the  question  of  probable  damages  the  riparian 
owner  cannot  be  restricted  to  a  reasonable  use.  Under  the 
new  rule  of  percolating  waters  the  times  and  amounts  of  use 
by  overlying  owner  and  appropriator  may  be  fixed  by  the 
Court  so  that  the  overlying  owner  will  have  the  first 
use  of  a  reasonable  amount  for  his  overlying  land  and 
the  appropriator  the  surplus  for  the  distant  land ;  and  in 


LAW     OF     UNDERGROUND     WATERS  33 

cases  of  present  non-use  by  the  overlying  owner,  the  appropri- 
ator  will  be  allowed  to  withdraw  the  water  until  the  former 
is  ready  to  use  it.  In  brief,  the  new  rule  of  percolating 
waters  allows  the  widest  possible  use  of  the  source  of  supply, 
while  the  rule  of  riparian  rights  results  in  waste.  It  is  rather 
paradoxical  to  have  the  sub-surface  supply,  which  is  naturally 
conserved  in  the  underground  reservoirs,  regulated  by  a  wise 
rule,  while  the  surface  supply,  which  unless  artificially  stored 
or  reasonably  used  must  run  to  waste,  remains  unregulated. 

In  the  previous  chapter  it  was  stated  that  the  case  of  Lux 
v.  Haggin  fixed  the  modified  doctrine  of  riparian  rights  in  Cali- 
fornia seemingly  for  all  time.  This  was  so  written  as  the  gen- 
eral view,  even  among  those  strenuously  opposed  to  the 
doctrine,  is  that  the  Supreme  Court  of  California  could  not 
seriously  consider  the  abrogation  of  the  doctrine  on  account 
of  the  extensive  rights  which  have  been  recognized  as  vested 
by  the  long  line  of  decisions  following  the  lead  of  Lux.  v.  Hag- 
gin.  It  is  believed,  however,  that  the  riparian  rights  of  conse- 
quence to  single  proprietors  belong  to  the  Spanish  grants; 
that  the  most  of  these  have  been  long  irrigated  and  therefore 
fully  protected  under  the  doctrine  of  appropriation;  and  that 
those  that  remain  are  being  or  will  be  subdivided  into  small 
tracts,  comparatively  few  of  which  will  retain  the  riparian 
right,  and  which  will  therefore  be  better  served  by  the  doctrine 
of  appropriation.  There  remain,  in  addition  to  the  grants,  the 
public  land  subdivisions  immediately  touched  or  crossed  by 
the  streams,  and  which  lie  in  such  narrow  strips  that  usually 
no  feasible  irrigation  scheme  can  be  made  to  include  them 
without  including  non-riparian  lands  also — that  is,  without 
resting  on  the  doctrine  of  appropriation.  The  abrogation  of 
the  riparian  rule  would  therefore  not  materially  injure  single 
proprietors,  the  aggregate  of  whose  holdings  now  seriously 
retards  the  promotion  of  storage  works. 

Lux  v.  Haggin  fixed  the  rule  of  riparian  rights  for  the 
reason  that  California  had  adopted  the  common  law  and  that 
it  was  the  doctrine  of  the  common  law.  Katz  v.  Walkinshaw 
rejected  the  common  law  rule  of  percolating  waters  as  un- 
suited  to  the  conditions  existing  in  California. 

The  Court  in  Lux  v.  Haggin  undoubtedly  considered  the 
riparian  rule  the  best  for  the  interests  of  the  state,  and  looked 
upon  the  doctrine  of  appropriation  as  one  certain  to  result  in 
monopolies  of  the  water  supply.  The  present  day  view  of  this 
latter  doctrine  will  be  presented  in  the  next  chapter  and,  it  is 
believed,  the  "monopolistic"  idea  will  be  shown  to  be  unten- 
able. 


CHAPTER  IV 
THE  DOCTRINE  OF  APPROPRIATION 

Most  of  the  western  states  have  adopted  statutes  which 
place  the  control  of  water  appropriations  in  the  office  of  the 
state  engineer.  In  all  but  a  few,  such  statutes  were  but  rec- 
ently adopted,  so  that  the  great  mass  of  water  rights  resting 
on  the  doctrine  of  appropriation  must  be  denned  by  the 
principles  laid  down  from  time  to  time  by  the  courts.  In  the 
first  chapter  it  was  stated  that  the  California  statutes  (Sec- 
tions 1410  to  1422  of  the  Civil  Code)  were  but  declaratory  of 
existing  law  (established  by  the  courts).  Similar  statutes 
were  first  adopted  in  the  other  western  states  and  the  court 
rulings  throughout  differ  but  little. 

Right  of  Access — Appropriations   Not   Restricted 
to  Public  Lands 

In  Alaska  Juneau  Gold  Mining  Company  v.  Ebner  Gold 
Mining  Company  (239  Fed.  638)  decided  Feb.  5,  1917,  the 
United  States  Circuit  Court  of  Appeals  quoted  with  approval 
the  following  from  the  Cyclopedia  of  Law  and  Procedure: 
"The  right  of  appropriation  extends  only  to  waters  upon  the 
public  domain  of  the  United  States,  or  upon  the  public  lands 
of  a  state,  for  one  cannot  acquire  a  water  right  on  land  held  in 
private  ownership  by  another  without  acquiring  an  easement 
in  such  land."  40  Cyc.  704.  In  the  Alaska  Juneau  case  the 
Alaska  company  had  posted  its  notice  of  appropriation  upon  a 
mining  claim  which  later  became  the  property  of  the  Ebner 
company.  The  court  held  that,  as  the  act  was  without  the 
consent  of  the  owner  of  the  property,  it  was  an  act  of  trespass 
and  could  not  become  the  basis  of  a  right  to  appropriate.  In 
Marshall  v.  Niagara  Springs  Orchard  Co.  (125  Pac.  208),  the 
Supreme  Court  of  Idaho,  after  quoting  with  approval  Cali- 
fornia and  Montana  cases,  held  that  an  appropriation  of  water 
cannot  be  made  on  private  premises  without  the  knowledge 

34 


THE     DOCTRINE     OF     APPROPRIATION  35 

and  consent  of  the  owner  thereof.  The  two  cases  cited  are  but 
illustrations  of  many  from  different  jurisdictions  on  the  same 
point.  It  is  from  such  decisions  that  the  idea  has  become  cur- 
rent that  water  can  be  appropriated  on  the  public  lands  only. 

During  the  early  mining  period  all  of  the  appropriators 
were  trespassers  upon  the  public  domain,  but  as  the  govern- 
ment, under  the  act  of  1866,  recognized  the  rights  which  had 
accrued  and  allowed  later  comers  to  appropriate  in  the  same 
way,  a  confusion  of  ideas  has  resulted  between  the  right  of 
access  and  the  right  to  appropriate.  The  Alaska  Juneau  case 
and  the  Marshall  case  cited  above  really  deal  only  with  the 
right  of  access,  and  a  study  of  the  cases  upon  which  the  above 
quotation  from  the  Cyclopedia  of  Law  and  Procedure  is  based 
shows  that  the  point  involved  in  such  cases  was  the  right  of 
access.  Although  some  of  the  confusion  existing  has  resulted 
from  decisions  of  the  California  Supreme  Court,  the  follow- 
ing quotation  from  Duckworth  v.  Watsonville  etc.,  Co., 
(150  Cal.  520)  is  sufficiently  definite  to  clear  the  situation: 

The  right  to  appropriate  water  under  the  provisions  of  the  civil 
code  is  not  confined  to  streams  running  over  public  lands  of  the  United 
States.  It  exists  wherever  the  appropriator  can  find  water  of  a  stream 
which  has  not  been  appropriated  and  in  which  no  other  person  has  or 
claims  superior  rights  and  interests. 

In  regard  to  appropriations  and  use  on  public  lands  not- 
open  to  entry,  it  has  been  held  by  the  Supreme  Court  or 
Washington  in  Avery  v.  Johnson  (109  Pac.  1028)  that  no  such 
right  "can  be  acquired  by  one  illegally  occupying  land  in  an 
Indian  reservation,  prior  to  the  opening  of  the  reservation  to 
settlement  under  the  homestead  law."  It  will  probably  be 
generally  held  that  one  wishing  to  appropriate  water  for  use 
on  the  public  domain  must  at  least  have  "some  sort  of  pos- 
sessory right,  good  as  against  everybody  but  the  government," 
as  "the  beneficial  use  contemplated  in  making  the  appropria- 
tion must  be  one  that  inures  to  the  exclusive  benefit  of  the 
appropriator  and  subject  to  his  complete  dominion  and  con- 
trol" (Lake  Shore  Duck  Club  v.  Lake  View  Duck  Club  — 
Utah—  166  Pac.  309). 

Waters  Open  to  Appropriation 

From  many  decisions  which  have  been  previously  cited 
there  can  be  no  question  about  the  right  to  appropriate  the 
waters  of  streams  on  the  public  domain.  In  .Sullivan  v. 
Northern  Spy  Mining  Company  (11  Utah  438),  decided  June 
17,  1895,  the  Supreme  Court  of  Utah  held  that  percolating 
waters  developed  by  digging  a  well  on  the  unoccupied  public 
domain  could  be  likewise  appropriated,  and  that  the  appropri- 


36  ELEMENTS     OF    WESTERN     WATER     LAW 

ator  acquires  the  right  to  take  water  from  such  wells  as 
against  one  who  by  subsequent  location  acquires  title  to  the 
land. 

The  Alaska  Juneau  case  is  particularly  interesting  as  it 
illustrates  how  the  courts  in  one  jurisdiction  follow  the  ac- 
cepted rules  of  prior  appropriation  in  the  other  western  juris- 
dictions. Alaska  has  no  statutes  governing  the  appropriation 
of  water,  so  that  the  right  to  appropriate  is  still  governed  by 
the  rules  of  the  local  mining  districts,  which  rules  are  pat- 
terned after  the  practice  of  mining  districts  elsewhere  in  the 
west.  Although  the  Utah  Supreme  Court  in  the  Northern  Spy 
case  rests  somewhat  for  its  views,  regarding  the  appropria- 
tion of  percolating  waters  on  the  public  domain,  upon  a  Utah 
statute,  the  terms  of  the  statute  cannot  be  considered  so 
special  that  the  rule  would  not  apply  in  other  western  states. 

In  Bear  Lake  etc.,  v.  Garland  (164  U.  S.  1),  the  Supreme 
Court  of  the  United  States,  in  support  of  its  statement  that 
rights  as  against  third  persons  are  acquired  by  priority  of 
possession,  and  that  the  government  will  and  does  recognize 
such  rights  as  between  the  parties,  cites  the  Northern  Spy 
case  as  one  of  the  many  illustrations  of  the  rule, 

It  is  desired  to  emphasize  the  above  paragraphs  under  this 
caption  as  there  seems  to  be  a  tendency  of  those  unfamiliar 
with  the  history  of  the  development  of  the  doctrine  of  prior 
appropriation  to  hold  that  only  the  waters  particularly  men- 
tioned in  the  state  statutes,  providing  for  the  appropriation  of 
water,  can  be  legally  appropriated.  The  statutes  governing 
appropriations  refer  to  the  waters  subject  thereto  as  "running 
water  flowing  in  a  river  or  stream,"  "natural  water  courses," 
"all  waters,"  or  use  other  expressions  of  the  same  nature,  and 
a  few  enumerate  in  addition  "lakes"  and  "springs".  There 
have  been  many  cases  in  both  eastern  and  western  jurisdic- 
tions in  which  the  question  of  what  is  a  "natural  water  course" 
has  been  given  careful  consideration.  These  cases  generally 
deal  with  the  question  of  damages  done  by  surface  or  flood 
waters,  and  it  is  seldom  that  the  point  has  to  be  carefully 
scrutinized  in  regard  to  the  right  to  appropriate — this  being  so 
for  the  reason  that  practically  all  waters  can  be  appropriated 
where  one  can  gain  the  right  of  access  thereto.  One  defini- 
tion of  a  natural  water  course  often  quoted  is  the  following 
from  Los  Angeles  etc.,  v.  Los  Angeles  (103  Cal.  466)  : 

There  must  be  a  stream,  usually  flowing  in  a  particular  direction, 
though  it  need  not  flow  continually.  It  may  sometimes  be  dry.  It 
must  flow  in  a  definite  channel,  having  a  bed  or  banks,  and  usually 
discharge  itself  into  some  other  stream  or  body  of  water.  It  must  be 
something  more  than  a  mere  surface  drainage  over  the  entire  face 


THE     DOCTRINE     OF    APPROPRIATION  37 

of  the  tract  of  land,  occasioned  by  unusual  freshets  or  other  extraordin- 
ary causes.  It  does  not  include  the  water  flowing  in  the  hollows  or 
ravines  in  land,  which  is  mere  surface  water  from  rain  or  melting 
snow  (i.  e.,  snow  lying  and  melting  on  the  land),  and  is  discharged 
through  them  from  a  higher  to  a  lower  level,  but  which  at  other  times 
are  destitute  of  water.  Such  hollows  or  ravines  are  not,  in  legal 
contemplation,  watercourses. 

Navigable  Waters 

The  statement  that  all  waters  of  natural  watercourses 
may  be  appropriated  must  be  somewhat  qualified  in  the  case 
of  navigable  streams.  In  Miller  v.  Enterprise  Company  (142 
Cal.  208)  the  plaintiff  sought  to  enjoin  the  defendant,  a  sub- 
sequent appropriator,  from  interfering  with  his  dam  and  ditch, 
and  the  latter  defended  its  action  on  the  ground  that  plaint- 
iff's dam  obstructed  a  navigable  stream,  the  San  Joaquin 
River.  It  was  held  that  as  the  plaintiff  had  for  many  years 
appropriated  water  from  the  river,  a  navigable  stream,  with- 
out complaint  from  any  public  authority,  state  or  national,  and 
that  while  navigation  had  been  interfered  with,  no  person  not 
connected  with  the  government  could  complain.  All  cases  be- 
tween individuals  raising  the  question  of  interference  with 
navigation  will  undoubtedly  be  decided  in  the  same  way.  It 
is  well  established,  however,  that  the  government  may  not  only 
stop  diversions  from  the  navigable  part  of  a  stream,  but  also 
even  those  from  the  non-navigable  part,  including  tributaries, 
if  such  diversions  will  interfere  with  navigation.  (United 
States  v.  Rio  Grande  D.  &  I  Co.,  174  U.  S.  690). 

Waters  of  Lakes 

In  actual  work  lake  waters  are  often  appropriated.  It  was 
contended  in  the  Duckworth  case  (above)  that  such  waters 
were  not  "running  water  flowing  in  a  stream",  but  the  court 
held: 

We  think  the  better  doctrine  in  respect  to  the  character  of  a 
stream  from  which  the  statute  provides  for  appropriations  is  that  it 
is  not  necessary  that  the  stream  should  continue  to  flow  to  the  sea 
or  to  a  junction  with  some  other  stream.  It  is  sufficient  if  there  is 
a  flowing  stream;  and  the  fact  that  it  ends  either  in  a  swamp,  in  a 
sandy  wash  in  which  water  disappears,  or  in  a  lake  in  which  it  is 
accumulated  upon  the  surface  of  the  ground,  will  not  defeat  the  right 
to  make  the  statutory  appropriation  therefrom,  and  we  can  see  no 
reason  why  the  appropriation  in  such  a  case  may  not  be  made  from 
the  lake  in  which  the  stream  terminates,  and  which  therefore  consti- 
tutes a  part  of  it,  as  well  as  from  any  other  part  of  the  water  course. 

In  Hough  v.  Porter  (98  Pac.  1083)  the  Oregon  Supreme 
Court  held,  contrary  to  the  above,  in  speaking  of  riparian 
rights,  that  when  water  spreads,  as  in  a  swamp  or  marsh, 


38  ELEMENTS     OF     WESTERN     WATER     LAW 

"with  no  well-defined  current  it  cannot  be  deemed  a  water 
course".  As  the  Oregon  statutes  now  provide  for  the  appro- 
priation of  "all  waters"  within  the  state,  this  ruling  cannot 
affect  appropriators. 

Waters  in  Artificial  Channels  and  Surface  Waters 

It  is  well  settled  that  water  in  artificial  channels  or  reser- 
voirs cannot  be  appropriated,  and  waters  artificially  developed 
as  in  a  mining  tunnel  and  allowed  to  flow  in  a  natural  water 
course  to  place  of  intended  use  are  likewise  exempt.  It  has 
been  held  by  the  Supreme  Court  of  New  Mexico  in  Vandei- 
work  v.  Hewes  (110  Pac.  567),  decided  August  9,  1910,  that 
"seepage  water  or  waters  from  snows,  rain,  or  springs,  not 
traceable  to  and  forming  a  stream  or  water  course"  may  be 
used  by  the  owner  of  the  land  on  which  they  rise  and  are  not 
subject  to  appropriation  without  his  consent.  The  rule  was 
followed  by  the  Idaho  Supreme  Court  in  King  v.  Chamberlin 
(118  Pac.  1099)  decided  Nov.  3,  1911,  where  the  waters  in 
question  were  surface  waters  collected  in  a  reservoir  on  plaint- 
iff's land. 

In  the  first  chapter  the  notice  of  appropriation  from  De 
Wolfskill  v.  Smith  (5  Cal.  App.  175)  was  given.  It  was  for  the 
water  flowing  from  abandoned  oil  wells  on  the  public  domain. 
The  Court  held  that  as  the  water  had  gathered  into  a  stream, 
it  was  immaterial  "whether  this  stream  is  supplied  by  water 
percolating  and  filtering  through  the  earth  or  not."  The  dif- 
ference between  this  case  and  those  cited  in  the  last  para- 
graph is  that  these  waters,  though  artificially  developed,  had 
been  abandoned,  and  the  others  had  been  retained  in  private 
possession. 

Waste  Waters 

Many  cases  deal  with  the  use  of  waste  waters  from  upper 
irrigated  land.  Such  cases  are  often  brought  by  the  lower 
user  of  such  waters  to  prevent  the  upper  irrigator  from  so 
changing  his  use  or  system  that  the  water  is  no  longer  avail- 
able to  the  lower  user.  It  is  well  established  that  the  lower 
user  is  entitled  to  no  relief  in  such  cases,  as  the  upper  irri- 
gator is  under  no  obligation  to  so  accommodate  the  lower  user 
—unless,  of  course,  there  is  an  express  agreement  to  the  con- 
trary. 

So  far  as  the  legal  right  to  use  waste  or  surplus  waters  is 
concerned,  the  following  from  the  Nevada  case  of  Bidleman  v. 
Short  (150  Pac.  834)  is  to  the  point,  and  expresses  the  rule 
which  applies  in  other  western  states : 


THE     DOCTRINE     OF     APPROPRIATION  39 

It  is  immaterial  that  the  so-called  surplus  or  waste  waters  are 
not  subject  to  appropriation  so  as  to  establish  a  permanent  right 
therein,  as  in  the  case  of  an  appropriation  of  the  waters  of  a  natural 
stream.  It  may  be  that  under  the  rule  of  economical  use  there  should 
be  no  surplus  or  waste  waters,  neverthelss,  so-called  surplus  or 
waste  waters  do  at  times  exist  and  rights  may  be  acquired  therein 
which  may  continue  so  long  as  there  is  such  waters.  The  complaint 
alleges  the  existence  of  such  waters  upon  the  lands  of  the  plaintiffs 
Bidleman.  So  long  as  such  waters  exist  upon  their  lands,  it  is  their 
property,  and  they  may  consent  to  others  acquiring  rights  therein  upon 
their  property  and  in  ditches  thereupon  for  the  purpose  of  conveying 
such  waters  to  the  lands  of  such  other  parties. 

Proceedings  to  Effect  Appropriations 

An  appropriation  has  been  denned  as  "the  intent  to  take, 
accompanied  by  some  open,  physical  demonstration  of  the 
intent,  and  for  some  valuable  use." 

Since  the  adoption  of  the  early  statutes  providing  for  the 
posting  of  notices  at  the  point  of  intended  diversion,  the  "in- 
tent" is  expressed  in  the  notice.  Following  the  notice,  the 
steps  are  the  recording  of  the  notice  and  the  initiation  of  the 
construction  work  within  the  time  designated — generally  ten 
and  sixty  days  respectively — the  prosecution  of  construction 
to  completion  with  reasonable  diligence  and  the  application  to 
beneficial  use.  If  the  steps  be  followed,  the  water  right  dates 
from  the  posting  of  the  notice. 

The  question  of  reasonable  diligence  is  a  serious  one  and 
especially  so  as  a  very  erroneous  view  is  abroad  in  the  land. 
A  common  idea  is  that  all  one  need  do  "to  hold  the  claim"  is 
to  act  about  as  he  would  to  hold  a  mining  claim,  and  the  re- 
sult is  that  the  occasional  use  of  a  shovel  and  wheelbarrow  are 
supposed  to  satisfy  the  requirement.  The  error  of  this  view 
was  shown  in  a  very  early  Nevada  case,  Ophir  Mining  Com- 
pany v.  Carpenter  (4  Nev.  534)  which  is  often  quoted  on  this 
question  by  other  courts.  The  following  sentences  are  very 
much  to  the  point  and  picture  conditions  of  far  too  many  of 
our  so-called  water  claims : 

If  the  labor  of  twenty  men  for  three  or  four  months,  in  a  period 
of  two  years  and  a  half,  constitutes  diligence  in  the  prosecution  of 
such  a  vast  enterprise  as  this,  it  is  difficult,  if  not  impossible,  to  desig- 
nate the  entire  want  of  diligence.  The  manner  in  which  this  work 
was  prosecuted  certainly  does  not  accord  with  what  is  generally 
understood  to  be  reasonable  diligence.  Diligence  is  denned  to  be  the 
"steady  application  to  business  of  any  kind,  constant  effort  to  accom- 
plish any  undertaking."  The  law  does  not  require  any  unusual  or 
extraordinary  efforts,  but  only  that  which  is  usual,  ordinary  and 
reasonable.  The  diligence  required  in  cases  of  this  kind  is  that  con- 
stancy or  steadiness  of  purpose  or  labor  which  is  usual  with  men 


40  ELEMENTS     OF    WESTERN     WATER     LAW 

engaged  in  like  enterprises,  and  who  desire  a  speedy  accomplishment 
of  their  designs.  Such  assiduity  in  the  prosecution  of  the  enterprise 
as  will  manifest  to  the  world  a  bona  fide  intention  to  complete  it 
within  a  reasonable  time.  It  is  doing  of  an  act,  or  series  of  acts,  with 
all  practicable  expedition,  with  no  delay,  except  such  as  may  be  inci- 
dent to  the  work  itself.  .  .  .  The  weather  would  not  have  pre- 
vented work  upon  this  ditch  ordinarily  more  than  three  or  four  months 
in  the  year,  hence  labor  upon  it  could  probably  have  been  prosecuted 
during  eight  or  nine  months  out  of  every  twelve.  Here,  however,  there 
was  a  period  of  thirty  months,  when  only  about  three  months'  work 
was  done,  or  one  month  out  of  every  ten.  Rose  during  this  time  may 
have  dreamed  of  his  canal  completed,  seen  it  with  his  mind's  eye 
yielding  him  a  great  revenue;  he  may  have  indulged  the  hope  of  provi- 
dential interposition  in  his  favor;  but  this  cannot  be  called  a  diligent 
prosecution  of  his  enterprise.  Surely  he  could  hardly  have  expected 
to  complete  it  during  his  natural  life  by  such  efforts  as  were  made 
through  this  period. 

As  the  question  of  diligence  is  one  of  fact  it  will  ordinar- 
ily, in  case  of  litigation,  be  decided  by  a  local  jury.  The  jury 
may  have  a  far  less  stringent  view  of  "that  constancy  or  stead- 
iness of  purpose  or  labor,"  than  the  ordinary  engineer,  but  it 
will  be  obliged  to  decide  on  at  least  a  fair  degree  of  it.  The 
size  and  character  of  the  works,  the  natural  conditions,  in- 
cluding climate  and  material,  and  all  other  modifying  ele- 
ments, must  be  considered.  Illness  or  lack  of  money  are  gen- 
erally held  to  be  no  excuse  for  delay  but  the  latter  has  been 
accepted  as  a  valid  excuse  in  Colorado  and  Idaho. 

Section  1422  of  the  Civil  Code  of  California  was  amended 
in  1903  to  provide  that  when  the  "place  of  intended  diversion 
or  any  part  of  the  route"  is  within  a  national  park,  forest  re- 
serve or  other  reservation,  the  claimant  shall  have  sixty  days 
from  the  date  of  approval  of  his  application  to  occupy  such 
national  park,  etc.,  within  which  to  commence  work.  Al- 
though not  so  provided  by  statute  in  other  states,  the  delay 
caused  in  getting  the  approval  of  federal  bureaus  will  be  ex- 
cused in  passing  upon  the  question  of  reasonable  diligence. 
In  Grant  Realty  Co.  v.  Ham,  Yearsley  and  Ryrie  (165  Pac. 
495),  the  Supreme  Court  of  Washington  held  that  "condemna- 
tion for  a  site  for  an  impounding  dam  or  intake  by  an  appro- 
priator  who  does  not  own  such  a  site  is  just  as  much  matter 
incident  to  the  enterprise  to  which  the  dam  or  intake  is  an  es- 
sential as  is  the  actual  construction  of  the  dam  or  intake"  and 
that,  therefore,  the  delay  in  actual  construction  work  caused 
by  the  prosecution  of  condemnation  proceedings  with  reason- 
able diligence  is  excusable. 

The  state  statutes  providing  for  posting  notices  of  ap- 
propriation fix  the  date  of  the  posting  of  notice  as  the  incep- 


THE     DOCTRINE     OF    APPROPRIATION  41 

tion  of  the  claim  under  it.  Where  there  are  no  statutes  to 
govern  the  specific  appropriation  the  original  court  rule  ap- 
plies (see  quotation  from  Conger  v.  Weaver  in  first  chapter), 
and  the  right  relates  back  to  the  first  substantial  act  of  the 
appropriator  for  the  acquisition  of  the  right,  whether  that  act 
be  the  actual  commencement  of  construction  work  or  other 
necessary  work  incident  thereto,  provided  always  that  reason- 
able diligence  is  exercised  in  finally  perfecting  the  appropria- 
tion. This  rule  was  applied  by  the  Supreme  Court  of  Wash- 
ington in  Sumner  Lumber  and  Shingle  Co.  v.  Pacific  Coast 
Power  Co.  (131  Pac.  220),  as  the  Court  held  that  the  appropri- 
ation statutes  of  Washington  did  not  require  a  notice  in  ap- 
propriating water  for  power  purposes.  As  stated  in  the  first 
chapter,  in  citing  Wells  v.  Mantes,  where  the  statute  does 
provide  posting  of  notice,  one  who  does  not  follow  the  statute 
loses  the  benefit  of  the  doctrine  of  relation  and  his  priority 
dates  only  from  the  completion  of  the  construction  work. 

Incomplete  Appropriations 

Prior  to  the  completion  of  the  diversion  works  and  the 
readiness  to  apply  the  water  to  beneficial  use  the  appropria- 
tion is  incomplete.  In  Rincon  Water  &  Power  Company  v. 
Anaheim  Union  Water  Company  (115  Fed.  543)  Judge  Wei- 
born  after  quoting  Sections  1415  to  1418  of  the  California  Civil 
Code  said : 

It  is  obvious  that  a  person  who  intends  to  become  an  appropriator 
under  these  sections  cannot  acquire  the  exclusive  right  to  the  use  of 
the  water  he  intends  appropriating,  nor  maintain  any  suit,  either  at 
law  or  in  equity,  for  its  diversion,  until  all  the  steps  requisite  to  an 
appropriation  have  been  taken.  .  .  .  From  the  statutory  enact- 
ments and  general  principles  above  quoted  and  stated,  the  conclusion 
is  not  only  fair,  but  unavoidable,  that  the  only  right  which  a  person 
acquires  by  posting  a  notice  is  the  right  to  prosecute  without  interfer- 
ence the  works  necessary  to  consummate  his  intended  appropriation. 

The  question  was  more  recently  before  the  California  Su- 
preme Court  in  two  cases,  resulting  from  the  operations  of 
Los  Angeles  in  the  Owens  Valley — Inyo  Consolidated  Water 
Company  v.  Jess  (161  Cal.  516)  decided  Dec.  11,  1911,  and 
Merritt  v.  Los  Angeles  (162  Cal.  47)  decided  Jan.  19,  1912. 
The  plaintiff  in  each  case  had  filed  a  notice  of  appropriation  on 
a  stream  within  a  national  forest  and  had  made  application  to 
the  Forest  Service  for  permission  to  construct  the  conduit. 
No  work  had  been  done  in  either  case  as  the  Forest  Service 
had  not  acted  on  the  application,  and  Section  1422  of  the  Civil 
Code  allowed  60  days  after  the  grant  of  permission  from  the 
federal  authorities  in  which  to  begin  construction.  Each 
action  was  brought  to  obtain  an  adjudication  of  the  alleged 


42  ELEMENTS     OF     WESTERN     WATER     LAW 

conflicting  claims,  and  the  lower  court,  following  the  early  de- 
cisions, decided  that  the  plaintiff  had  no  property  interest  on 
which  to  base  the  suit.  The  Supreme  Court,  however,  decided 
that  the  plaintiff  had  "an  incomplete,  incipient,  conditional 
right  in  the  water,  which  is  a  vested  interest  in  real  property, 
and  which  may  be  adjudged  to  be  such  in  an  action  to  de- 
termine conflicting  claims".  In  the  later  case  the  Supreme 
Court  added : 

Such  judgment,  of  course,  should  not  declare  the  plaintiff  abso- 
lutely entitled  to  the  water,  nor  enjoin  the  defendant  from  taking  or 
using  it  during  the  intervening  time  prior  to  the  completion  of  plain- 
tiff's works  to  a  stage  which  will  enable  him  to  divert  and  use  it.  It 
should  only  declare  and  describe  the  plaintiff's  contingent  right  to  use 
the  water  and  enjoin  adverse  claims  or  uses  injurious  thereto. 

The  only  effect  of  the  two  decisions,  therefore,  is  to  secure 
to  the  owner  of  an  incomplete  right  a  determination  of  con- 
flicting claims.  They  do  not  allow  interference  with  either 
construction  of  works  or  actual  diversions. 

The  Measure  of  the  Right  *  • 

Under  a  great  many  of  the  early  decisions  not  only  was 
the  maximum  capacity  of  the  ditch  decreed,  but  very  often  the 
amount  mentioned  in  the  notice,  which  might  be  far  in  excess 
of  the  maximum  capacity.  The  holders  of  these  old  rights  very 
naturally  looked  upon  the  amount  decreed  as  their  water/ 
whether  they  had  use  for  it  or  not,  and  believed  that  they  had 
the  right  to  sell  as  desired.  No  court  would  tolerate  such  a 
view  today.  It  is  now  generally  held  that  a  right  to  the  use 
of  water  is  limited  in  time  and  volume  to  the  extent  of  the 
needs  of  the  possessor  thereof. 

The  rule  is  well  illustrated  by  the  following  quotation 
from  McCoy  v.  Huntley  (119  Pac.  481)  decided  by  the  Su- 
preme Court  of  Oregon  Jan.  15,  1912: 

We  see  no  reason  why,  even  in  cases  involving  prior  and  subse- 
quent appropriations  of  water,  the  courts  cannot  require  the  appropri- 
ators  to  alternate  in  the  use  of  the  water.  The  time  when  water  may 
be  used  recklessly  or  carelessly  has  passed  in  this  State.  With 
increasing  settlement  water  has  become  too  scarce  and  too  precious 
to  justify  any  but  an  economical  use  of  it.  An  appropriator  has  only 
the  right  to  use  so  much  as  his  needs  require  and  at  the  time  his  needs 
require.  And  if  these  are  satisfied  by  a  use  of  the  whole  flow  every 
other  day,  or  every  alternate  week,  he  ought  not  to  be  heard  to  com- 
plain. It  is  evident  that  from  some  cause  or  from  a  variety  of  causes 
the  waters  of  Pine  creek  are  diminishing  in  volume  at  the  point  where 
the  parties  to  this  controversy  are  residing.  It  is  now  probable 
that  to  divide  the  water,  without  alternating,  would  injure  both  parties. 
A  test,  since  the  preliminary  order  was  made  in  this  case  in  1906, 


THE     DOCTRINE     OF     APPROPRIATION  43  - 

indicates  that  by  the  method  adopted  both  parties  can   raise   good 
crops  and  both  prosper. 

Another  excellent  statement  of  the  rule  is  the  following 
from  the  Montana  case  of  Conrow  v.  Huffine  (138  Pac.  1094;  : 

Under  this  rule,  the  extent  of  the  right  of  the  first  appropriator 
is  measured  by  the  capacity  of  the  original  ditch.  After  the  use  has 
been  installed,  however,  if  the  capacity  of  the  ditch  exceeds  the  amount 
required  for  reasonable  use,  the  necessity  for  the  use,  and  not  tho. 
size  of  the  ditch,  is  the  measure  of  the  extent  of  the  right  *  *  *  The 
tendency  of  recent  decisions  of  the  courts  in  the  arid  states  is  to 
disregard  entirely  the  capacity  of  the  ditch  and  regard  the  actual 
beneficial  use,  installed  within  a  reasonable  time  after  the  appropria- 
tion has  been  made,  as  the  test  of  the  extent  of  the  right. 

In  the  Alaska  Juneau  case  the  lower  court,  in  its  findings 
of  fact,  had  fixed  the  capacity  of  the  diversion  flume  of  the 
Ebner  Mining  Co.  as  3200  inches,  but  in  its  decree  it  awarded 
said  company  10,000  inches — the  amount  stated  in  the  notice 
of  water  appropriation  posted  in  behalf  of  the  company.  In 
remanding  the  cause  to  the  court  below,  the  Circuit  Court  of 
Appeals  ordered  that  the  decree  should  be  changed  to  conform 
to  the  capacity  of  the  flume.  This  order  is  in  accordance  with 
the  well  accepted  principle  that  the  first  measure  of  an  ap- 
propriator's  right  is  the  amount  stated  in  his  notice,  but  that 
his  right  upon  the  completion  of  his  diversion  works  is  lim- 
ited to  the  capacity  of  such  works. 

Principles  of  Prior  Appropriation 

Probably  the  best  judicial  summary  of  the  principles  of 
prior  appropriation  appearing  in  the  reported  cases  is  that  of 
Judge  Hawley  in  Union  Mill  &  Mining  Company  v.  Dangberg 
(81  Fed.  73),  decided  May  24,  1897.  It  was  Judge  Hawley 
who,  when  a  Justice  of  the  Nevada  Supreme  Court,  wrote  the 
opinion  in  Jones  v.  Adams  overruling  Van  Sickle  v.  Haines 
and  abrogating  the  doctrine  of  riparian  rights  in  Nevada.  His 
opinions  in  both  the  law  of  mines  and  the  law  of  waters  show 
a  deep  knowledge  of  the  industries  affected  and  an  earnest  de- 
sire to  assist  in  bettering  conditions.  The  reader  will  find  the 
Dangberg  case  both  interesting  and  instructive.  The  sum- 
mary follows : 

Under  the  principles  of  prior  appropriation,  the  law  is  well  set- 
tled that  the  right  to  water  flowing  in  the  public  streams  may  bo 
acquired  by  an  actual  appropriation  of  the  water  for  a  beneficial  use; 
that,  if  it  is  used  for  irrigation,  the  appropriator  is  only  entitled  to 
the  amount  of  water  that  is  necessary  to  irrigate  his  land,  by  making 
a  reasonable  use  of  the  water;  that  the  object  had  in  view  at  the 
time  of  the  appropriation  and  diversion  of  the  water  is  to  be  consid- 
ered in  connection  with  the  extent  and  right  of  appropriation;  that, 


44  ELEMENTS     OF     WESTERN     WATER     IAW 

if  the  capacity  of  the  flume,  ditch,  canal,  or  other  aqueduct,  by  means 
of  which  the  water  is  conducted,  is  of  greater  capacity  than  is  neces* 
sary  to  irrigate  the  lands  of  the  appropriator,  he  will  be  restricted  to 
the  quantity  of  water  needed  for  the  purposes  of  irrigation,  for  water- 
ing  his  stock,  and  for  domestic  use;  that  the  same  rule  applies  to  an 
appropriation  made  for  any  other  beneficial  use  or  purpose;  that  no 
person  can,  by  virtue  of  his  appropriation,  acquire  a  right  to  any  more 
water  than  is  necessary  for  the  purpose  of  his  appropriation;  that,  if 
the  water  is  used  for  the  purpose  of  irrigating  lands  owned  by  the 
appropriator,  the  right  is  not  confined  to  the  amount  of  water  used  at 
the  time  the  appropriation  is  made;  that  the  appropriator  is  entitled, 
not  only  to  his  needs  and  necessities,  at  that  time,  but  to  such  other 
and  further  amount  of  water,  within  the  capacity  of  his  ditch,  as  would 
be  required  for  the  future  improvement  and  extended  cultivation  of 
his  lands,  if  the  right  is  otherwise  kept  up;  that  the  intention  of  the 
appropriator,  his  object  and  purpose  in  making  the  appropriation,  his 
acts  and  conduct  in  regard  thereto,  the  quantity  and  character  of  land 
owned  by  him,  his  necessities,  ability,  and  surroundings,  must  be 
considered  by  the  courts,  in  connection  with  the  extent  of  his  actual 
appropriation  and  use,  in  determining  and  denning  his  rights;  that 
the  mere  act  of  commencing  the  construction  of  a  ditch  with  i 
avowed  intention  of  appropriating  a  given  quantity  of  water  from  a 
stream  gives  no  right  to  the  water  unless  this  purpose  and  intention 
are  carried  out  by  the  reasonable,  diligent,  and  effectual  prosecution 
of  the  work  to  the  final  completion  of  the  ditch,  and  diversion  of  the 
water  to  soifte  beneficial  use;  that  the  rights  acquired  by  the  appropri- 
ator must  be  exercised  with  reference  to  the  general  condition  of  the 
country  and  the  necessities  of  the  community,  and  measured  in  its 
extent  by  the  actual  needs  of  the  particular  purpose  for  which  the 
appropriation  is  made,  and  not  for  the  purpose  of  obtaining  a  monopoly 
of  the  water,  so  as  to  prevent  its  use  for  a  beneficial  purpose  by  other 
persons;  that  the  diversion  of  the  water  ripens  into  a  valid  appropria- 
tion  only  where  it  is  utilized  by  the  appropriator  for  a  beneficial  use; 
that  the  surplus  or  waste  water  of  a  stream  may  be  appropriated, 
subject  to  the  rights  of  prior  appropriate rs,  and  such  an  appropriator 
is  entitled  to  use  all  such  waters;  that,  in  controversies  between 
prior  and  subsequent  appropriators  of  water,  the  question  generaliy 
is  whether  the  use  and  enjoyment  of  the  water  for  the  purposes  to 
which  the  water  is  applied  by  the  prior  appropriator  have  been  in  any 
manner  impaired  by  the  acts  of  the  subsequent  appropriator.  (Union 
Mill  &  Mining  Company  v.  Dangberg,  81  Fed.  73.) 


CHAPTER  V 
LOSS  OF  WATER  RIGHTS 

Water  rights,  like  other  real  property,  may  be  lost  by 
abandonment,  forfeiture,  adverse  user  or  prescription,  or 
estoppel. 

Abandonment  and  Forfeiture 

Abandonment  is  often  denned  as  "the  relinquishment  or 
surrender  of  rights  or  property  by  one  person  to  another", 
but  in  the  law  of  waters  abandonment  simply  adds  to  the 
unappropriated  public  waters  and  the  benefits  therefrom  are 
not  intended  to  accrue  to,  a  particular  person.  It  consists  of 
the  two  elements,  act  and  intention;  although  the  latter  is 
generally  considered  the  "essence"  thereof.  As  stated  in  Utt 

v.  Frey  (106  Cal.  397)  : 

The  mere  intention  to  abandon,  if  not  coupled  with  yielding  up 
possession  or  a  cessation  of  user,  is  not  sufficient;  nor  will  the  nonuser 
alone  without  an  intention  to  abandon  be_^  held  to  amount  to  an  aban- 
donment. Abandonment  is  a  question  of  fact  to  be  determined  by  a 
jury  or  the  court  sitting  as  such. 

The  intention  to  abandon  must  be  shown  by  nonuse  and 
similar  acts,  but  nonuse,  unless  continued  for  an  unreasonable 
period,  will  not  be  sufficient.  The  presumption  created  by 
even  an  unreasonable  nonuse  may  be  overcome  by  satisfactory 
proofs.  The  opinion  of  the  Supreme  Court  of  Montana  in 
Smith  v.  Hope  Mining  Company  (45  Pac.  632)  is  especially 
noteworthy  as  the  water  to  run  a  mill  had  not  been  used  for 
nine  years,  but  the  machinery  was  cared  for  and  maintained 
in  good  condition  during  the  period  of  nonuse.  The  Court 
said: 

It  is  true  that  the  evidence  shows  without  controversy  that  the 
Algonquin  Company  did  not  use  the  waters,  in  their  mill  or  otherwise, 
for  a  period  of  about  nine  years  following  1883.  But  mere  nonuser-  of 
a  water  right  is  not  abandonment.  The  nonuser  of  water  for  so  long 
a  period,  and  especially  a  period  longer  than  the  statute  of  limitations, 
is  certainly  very  potent  evidence,  if  it  stood  alone,  of  an  intention  to 

45 


46  ELEMENTS     OF     WESTERN     WATER     LAW 

./ 

abandon.  .  .  .  But  whatever  force  the  fact  of  nonuser  for  nine 
years  may  have  had  in  showing  an  intention  to  abandon,  that  force 
was  wholly  offset  and  contradicted  by  the  other  evidence  in  the  case, 
so  as  to  leave,  in  our  opinion,  not  even  a  conflict  of  testimony. 

As  riparian  rights  to  the  use  of  water  do  not  depend 
upon  use  nor  cease  with  disuse,  they  cannot  be  lost  by  aban- 
donment, so  that  this  question  can  only  be  raised  regarding 
rights  by  appropriation.  Although  water  rights  and  ditches 
are  generally  thought  of  as  one,  they  are  distinct  property  in- 
terests and  either  may  be  held  without  the  other.  A  ditch  can 
accordingly  be  abandoned  without  abandoning  the  water 
right.  Likewise  water  may  be  turned  into  natural  water 
courses  for  diversion  at  lower  points  without  it  being  held  an 
abandonment — that  is,  the  waterway  may  be  used  as  part  of 
the  ditch  system.  It  is  also  held  without  exception  that  the 
point  of  diversion,  the  place  of  use  and  the  manner  of  use  may 
be  changed  without  loss  of  right,  provided  no  other  user  is 
injured  thereby. 

As  non-use  under  the  court  rulings  simply  raises  the  pre- 
sumption of  abandonment,  a  number  of  the  western  states 
have  fixed  by  statute  a  definite  period  for  which  non-use  will 
work  a  forfeiture  of  the  right.  The  prescribed  period  in  Utah 
is  seven  years ;  in  Idaho,  Nevada  and  Wyoming  five  years ;  in 
New  Mexico  four  years;  in  California,  North  Dakota  and 
South  Dakota  three  years ;  in  Oklahoma  two  years ;  in  Oregon 
one  year.  Both  the  Utah  and  Oregon  statutes  contain  the 
added  provision  that  a  question  of  abandonment  shall  be  one 
of  fact,  to  be  tried  and  determined  as  other  questions  of  fact. 
The  virtue  of  the  two  statutes  is  thereby  destroyed  as  the  aim 
of  such  statutes  is  to  definitely  fix  the  period  of  non-use  which 
shall  constitute  a  forfeiture,  and  thus  preclude  court  proceed- 
ings to  determine  the  intention. 

Section  46  of  the  South  Dakota  irrigation  act  of  1907  pro- 
vides that,  when  a  party  entitled  to  the  use  of  water  fails  to 
beneficially  use  all  or  any  portion  of  the  waters  claimed  by 
him  for  a  period  of  three  years,  such  unused  waters  shall  re- 
vert to  the  public.  The  Supreme  Court  of  South  Dakota  in 
St.  Germain  Irrigating  Co.  v.  Hawthorn  Ditch  Co.  (143  N.  W. 
124)  held  that  the  section  is  void  as  to  a  riparian  owner  but 
valid  as  to  an  appropriator.  It  added,  "A  riparian  right  to 
use  such  waters  of  a  flowing  stream  cannot  be  lost  by  disuse". 

Section  20a  was  added  to  the  California  water  commis- 
sion act  in  1917,  and  is  practically  the  same  as  Section  46  of 
the  South  Dakota  statute,  commented  on  above.  Prior  to 
1917  there  was  no  California  statute  fixing  the  period  of  non- 
use  which  would  ripen  into  a  forfeiture.  The  case  of  Smith  v. 


LOSS     OF     WATER     RIGHTS  47 

Hawkins  (110  Cal.  122)  is,  therefore,  still  of  importance  in 
California,  and  has  been  cited  as  a  leading  authority  on  the 
question  of  forfeiture,  or  loss  of  right  through  nonuse,  in  other 
jurisdictions.  The  court  therein  distinguishes  between  aban- 
donment and  forfeiture,  and  on  account  of  its  importance  the 
following  long  quotation  is  given: 

Section  1411  of  the  Civil  Code  declares  that  the  appropriation 
must  be  for  some  useful  or  beneficial  purpose,  and  when  the  appropri- 
ator  or  his  successor  in  interest  ceases  to  use  it  for  such  purpose,  the 
right  ceases.  This  section  deals  with  the  forfeiture  of  a  right  by  non- 
user  alone.  We  say  nonuser,  as  distinguished  from  abandonment. 
If  an  appropriator  has,  in  fact,  abandoned  his  right,  it  would  matter 
not  for  how  long  a  time  he  had  ceased  to  use  the  water,  for  the  moment 
that  the  abandonment  itself  was  complete  his  rights  would  cease  and 
determine.  Upon  the  other  hand,  he  may  have  leased  his  property,  and 
paid  taxes  thereon,  thus  negativing  the  idea  of  abandonment,  as  in  this 
case,  and  yet  may  have  failed  for  many  years  to  make  any  beneficial 
use  of  the  water  he  has  appropriated.  The  question  presented,  there- 
fore,  is  not  one  of  abandonment,  but  one  of  nonuser  merely,  and,  as 
such,  involves  a  construction  of  Section  1411  of  the  Civil  Code.  That 
section,  as  has  been  said,  makes  a  cessation  of  use  by  the  appropriator 
work  a  forfeiture  of  his  right,  and  the  question  for  determination  is, 
How  long  must  this  nonuser  continue  before  the  right  lapses? 

Upon  this  point  the  legislature  has  made  no  specific  declaration, 
but,  by  analogy,  we  hold  that  a  continuous  nonuser  for  five  years  will 
forfeit  the  right.  The  right  to  use  the  water  ceasing  at  that  time,  the 
rights  of  way  for  ditches  and  the  like,  which  are  incidental  to  the 
primary  right  of  use,  would  fall  also,  and  the  servient  tenement  would 
be  thus  relieved  from  the  servitude. 

In  this  state  five  years  is  the  period  fixed  by  law  for  the  ripening 
of  an  adverse  possession  into  a  prescriptive  title.  Five  years  is  also 
the  period  declared  by  law  after  which  a  prescriptive  right  depending 
upon  enjoyment  is  lost  for  nonuser;  and  for  analogous  reasons  we  con- 
sider it  to  be  a  just  and  proper  measure  of  time  for  the  forfeiture  of 
an  appropriator's  rights  for  a  failure  to  use  the  water  for  a  beneficial 
purpose. 

In  the  preceding  chapter  it  was  stated  that  under  the 
doctrine  of  prior  appropriation  one  is  given  a  reasonable  time 
after  the  completion  of  the  diversion  works  in  which  to  apply 
the  water  claimed  to  beneficial  use.  In  the  case  of  an  irriga- 
tion project  this  application  requires  a  number  of  years  which 
is  definitely  fixed  in  those  states  where  appropriations  are 
made  by  application  to  the  state  engineer,  but  which,  in  states 
where  the  posting  of  notices  is  still  tolerated,  is  limited  only 
by  the  rule  of  reasonable  diligence.  This  time  limit  for  the 
larger  projects  has  seldom  been  passed  upon  in  the  reported 
cases.  The  five-year  period  fixed  in  Smith  v.  Hawkins  must 
not  be  taken  as  a  precedent  in  cases  of  incomplete  appropria- 


48  ELEMENTS     OF    WESTERN     WATER     IAW 

tions,  as  in  the  latter  the  right  to  the  full  amount  of  the  ap- 
propriation is  conditioned  upon  the  irrigation  of  all  the  land 
under  the  ditch  within  a  reasonable  time.  Smith  v.  Hawkins 
deals  with  a  right  which  had  become  completely  vested  and 
later  fell  into  disuse.  It  is  believed  that  the  larger  irrigation 
projects  will  be  allowed  a  longer  period  than  five  years  in 
which  to  apply  all  the  water  to  beneficial  use,  as  the  settle- 
ment of  such  generally  necessitates  a  greater  time. 

Adverse  Use  or  Prescription 

These  are  a  very  few  cases  involving  the  alleged  wrongful 
diversion  of  water  in  which  a  right  by  adverse  use  or  prescrip- 
tion is  not  pleaded.  Nevertheless  there  are  very  few  cases  in 
in  which  such  title  is  upheld,  as  it  is  seldom  that  a  case  pre- 
sents all  the  elements  necessary  to  prove  adverse  use.  In 
order  to  ripen  into  title  the  adverse  use  must  be  continuous 
for  the  statutory  period,  open,  notorious,  peaceable,  under 
claim  or  color  of  right,  and  to  the  damage  of  the  water-user 
against  whom  the  right  accrues.  The  burden  of  proof  is  on 
the  claimant  of  the  adverse  title. 

The  statutory  period  referred  to  is  the  period  provided  in 
the  statute  of  limitations  regarding  actions  pertaining  to  real 
property.  The  period  for  the  western  states  is  as  follows: 
Arizona,  three  years;  California,  Colorado,  Idaho  and  Ne- 
vada, five  years;  Utah,  seven  years;  Montana,  Nebraska, 
North  Dakota,  Oregon,  Texas,  Washington  and  Wyoming, 
ten  years ;  Kansas,  fifteen  years ;  South  Dakota,  twenty  years. 
By  "continuous"  is  not  meant  that  the  use  should  be  unceas- 
ing for  the  period,  but  simply  that  the  claimant  used  the 
water  during  such  times  as  he  needed  it.  In  the  case  of  irri- 
gation the  water  might  be  needed  but  one  day  during  each 
month  of  the  irrigation  season,  and  such  use  if  made  for  the 
statutory  period  would  be  held  "continuous." 

"Open"  and  "notorious"  signify  that  the  use  has  not  been 
by  stealth  but  on  the  contrary  "before  all  the  world",  so  as  to 
be  generally  known.  "Peaceable"  (or  "uninterrupted")  means 
that  the  original  possessor  of  the  right  has  not  interfered  with 
the  adverse  use.  Any  interference  or  interruption,  however 
slight,  will  prevent  the  acquisition  of  the  right.  Mere  verbal 
protests,  however,  are  not  considered  interruptions — the  lat- 
ter must  be  due  to  some  physical  act,  such  as  closing  down  ;i 
headgate,  cutting  a  ditch  bank,  or  breaking  a  diversion  dam. 

The  claimant  must  consider  and  treat  the  right  as  his 
own  and  not  acknowledge  a  superior  claim  on  the  part  of  the 
original  owner.  If  at  any  time  during  the  statutory  period 


LOSS     OF     WATER     RIGHTS  49 

permission  to  divert  the  water  has  been  sought,  the  adverse 
claim  must  fail. 

That  the  use  has  been  to  the  damage  or  detriment  of  the 
original  possessor  is  generally  the  most  difficult  of  the  many 
points  to  prove.  Regarding  the  damage  as  between  appro- 
priators,  Judge  Hawley  in  Union  Mill  and  Mining  Company 
v.  Dangberg  (81  Fed.  73)  said,  "There  must  have  been  such  a 
use  of  the  water,  and  such  damage,  as  would  raise  a  presump- 
tion that  complainant  would  not  have  submitted  to  it  unless 
the  respondents  had  acquired  the  right  to  use  it." 

In  the  first  edition  of  this  book,  the  writer  stated  that  the 
current  idea,  that  an  appropriator  in  California  by  diversion 
and  use  for  five  years  secures  an  absolute  right  as  against 
lower  riparian  owners,  was  erroneous.  This  statement  was 
based  upon  decisions  of  the  California  Supreme  Court  made  at 
that  time  indicating  that  the  diversion  by  an  appropriator  will 
be  allowed  in  all  cases  where  injury,  either  present  or  future, 
would  not  be  done  to  riparian  owners.  It  was  believed  that  a 
diversion  which  did  not  directly  damage  the  riparian  owner 
could  not  be  considered  adverse.  The  recent  California  case 
of  Horst  Company  v.  Tarr  Mining  Co.  (163  Pac.  492)  clearly 
shows,  however,  that  the  "current  view"  is  the  correct  one.  In 
that  case  the  lower  riparian  owners  attempted  to  enjoin  the 
upper  appropriators,  who  had  been  diverting  the  waters  of 
Bear  River  for  upwards  of  fifty  years,  on  the  grounds  that  the 
diversion  had  only  recently,  and  within  five  years  of  the  initia- 
tion of  the  suit,  deprived  the  riparian  owners  of  the  natural 
flow  of  the  stream.  The  Court  held,  however,  that  the  plaint- 
iffs were  entitled  to  the  full  flow  of  the  stream  by  their  lands 
at  all  times  and  that  any  taking  above  to  non-riparian  lands 
was  an  invasion  of  their  rights,  whether  they  used  the  water 
or  not,  and  regardless  of  the  fact  that  the  water  remaining  in 
the  stream  may  have  been  sufficient  for  their  needs  and  uses. 
The  diversion  for  five  years,  therefore,  gave  the  appropriators 
"a  perfect  title  in  fee,  good  against  all  lower  riparian  propri- 
etors *  *  *  ."  The  case  is  especially  strong  on  this  point 
as  the  plaintiffs  claimed  that  the  defendants  in  former 
years  had  brought  from  other  sources  and  emptied  into  Wolf 
Creek,  a  branch  of  the  Bear  River,  water  equivalent  in  amount 
to  that  diverted  from  the  main  stream,  and  that  for  this  reason 
the  natural  flow  of  the  stream  at  plaintiffs'  land  was  unaf- 
fected. 

It  should  be  apparent  to  all  that  an  appropriator  can 
secure  no  adverse  title  against  an  upper  riparian  owner,  but 
cases  are  constantly  arising  where  this  plea  is  made.  In  Rog- 


50  ELEMENTS     OF     WESTERN  t  WATER     LAW 

ers  v.  Overacker   (4  Cal.  App.  333)   the  California    District 
Court  of  Appeal  in  dealing  with  such -a  plea  said: 

The  rule  seems  to  be  as  laid  down  in  Bathgate  v.  Irvine,  126  Cal. 
135,  77  Am.  St.  Rep.  158,  58  Pac.  442,  and  Hargrave  v.  Cook,  108  Cal.  72, 
41  Pac.  18,  30  L.R.A.  390.  In  the  first  case  it  was  said,  approving  the 
latter  case,  that  a  lower  riparian  owner  cannot  acquire  a  right,  either 
by  prior  appropriation  or  by  prescription  or  adverse  user,  as  against 
an  upper  riparian  proprietor  whose  rights  antedate  the  appropriation 
and  user,  and  the  mere  nonuser  of  the  water  by  the  upper  proprietor 
and  his  permitting  the  water  to  pass  down  to  the  lands  of  the  lower 
owner  cannot  make  the  user  of  the  lower  owner  adverse  or  strengthen 
his  claim  of  appropriation  or  prescription. 

The  expression  "as  against  an  upper  riparian  proprietor 
whose  rights  antedate  the  appropriation  and  user"  refers  to 
the  well  settled  rule  that  the  rights  of  the  appropriator  are 
superior  to  those  of  the  riparian  owner  where  the  former  had 
initiated  his  appropriation  while  the  riparian  land  in  question 
was  unentered  public  land.  Occasionally,  even  in  the  reported 
cases,  the  rights  of  the  appropriator  are  considered  superior 
if  initiated  before  patent  issued  for  the  riparian  land.  The 
present  accepted  view  is,  however,  that  the  riparian  owner's 
rights  date  from  his  entry  of  the  land  and  not  from  the  issu- 
ance of  patent,  and,  therefore,  to  be  superior,  the  appropriator 
must  have  initiated  his  rights  to  the  water  prior  to  the  time 
the  riparian  owner  initiated  his  rights  to  the  land. 

Estoppel 

"Estoppel  by  silence"  arises  where  a  person  who,  by 
force  of  circumstances,  is  under  a  duty  to  another  to  speak  re- 
frains from  doing  so  and  thereby  leads  the  other  to  believe  in 
the  existence  of  a  state  of  facts  in  reliance  upon  which  he  acts 
to  his  prejudice  (16  Cyc.  681). 

Although  the  general  principles  of  appropriation  are 
understood  by  those  diverting  or  intending  to  divert  water, 
and  especially  the  rule  that  the  subsequent  appropriator  takes 
only  what  is  left,  it  is  very  common  to  have  the  claim  made 
that  no  notice  of  the  rights  of  the  opposing  party  was  given 
and  that  said  party  is  estopped  from  setting  up  a  superior 
right.  The  courts  very  early  in  the  mining  period  expressed 
themselves  strongly  to  the  contrary,  but  the  claim  still  per- 
sists. In  a  comparatively  recent  California  case  dealing  with 
underground  waters  it  is  said : 

The  mere  fact  that  the  defendants  expended  money  in  sinking 
the  wells  and  putting  in  the  pumps  each  upon  his  own  land,  with  the 
knowledge  of  the  plaintiffs  and  without  objection  by  them,  creates  no 
estoppel.  A  mere  passive  acquiescence  when  one  is  under  no  duty 


LOSS     OF     WATER     RIGHTS  51 

to  speak  does  not  raise  an  estoppel.    (Verdugo  Canyon  Water  Company 
v.  Verdugo,  152  Cal.  655.) 

Practically  the  same  language  has  been  used  in  a  number 
of  cases  where  the  point  was  raised.  It  is  theref  re  established 
beyond  doubt  that  neither  a  riparian  owner  nor  an  appropri- 
ator  need  serve  notice  of  existing  rights  upon  a  subsequent 
appropriator  engaged  in  the  construction  of  diversion  or  stor- 
age works. 

Rights  of  Way  by  Prescription 

Rights  of  way  for  ditches  may  be  acquired  by  prescrip- 
tion in  the  same  way  as  water  rights.  The  most  serious  ele- 
ment in  so  proving  is  the  "color  of  title".  After  a  ditch  has 
been  constructed  and  operated  for  years  it  is  very  difficult  to 
show  that  the  right  does  not  rest  upon  permission  to  occupy 
given  by  the  owner  of  the  land  crossed — that  is,  parol  license. 
The  statute  of  frauds  provides  that  interest  in  real  property 
can  be  conveyed  only  by  written  instruments.  As  a  ditch 
right  of  way  is  such  an  interest,  the  original  and  strict  legal 
rule  is  that  the  right  cannot  be  founded  on  a  parol  license; 
but  the  rule  has  been  modified,  if  not  reversed,  in  a  great  many 
of  the  states. 

In  the  case  of  Gustin  v.  Harting  (121  Pac.  522),  decided 
Feb.  17,  1912,  the  Supreme  Court  of  Wyoming  considered  at 
great  length  the  question  as  to  whether  the  plaintiff  had  ac- 
quired a  right  of  way  for  a  flume  by  prescription  and  also  the 
right  to  maintain  it  under  an  irrevocable  license — it  being  ad- 
mitted that  the  flume  had  been  constructed  with  the  parol  con- 
sent of  the  landowner,  the  defendant.  It  was  held  that,  under 
the  existing  facts,  the  license  was  irrevocable  and  the  right  to 
maintain  the  flume  secured  by  prescription.  In  reaching  its 
conclusion  the  Court  said :  , 

The  principle  that  a  parol  license,  when  executed  by  the  expendi- 
ture of  money  or  labor,  if  not  given  for  a  mere  temporary  purpose, 
becomes  irrevocable,  has  been  recognized  and  applied  in  several  other 
cases  involving  irrigating  works. 

Among  the  many  cases  cited  and  examined  in  support  of 
the  principle  are  some  from  California,  Colorado,  Nebraska 
and  Oregon,  showing  that  they  also  recognize  the  modified 
rule.  To  these  Idaho,  Nevada  and  Utah  may  be  added. 

The  Supreme  Courts  of  Montana  and  Washington  refuse 
to  accept  the  modified  rule.  In  Archer  v.  Chicago  M.  &  St.  P. 
Ry.  Co.  (108  Pac.  571),  decided  April  2,  1910,  the  Supreme 
Court  of  Montana  considered  cases  in  favor  of  the  new  rule 

but  held   that,   "sound reasoning   sustains   the 

rule  that  a  parol  license  of  the  character  of  the  one  under  con- 
sideration is  always  revocable  at  the  pleasure  of  the  licensor." 


CHAPTER  VI 
WATER  RIGHT  LEGISLATION 

Sections  1410  to  1422  of  the  Civil  Code  of  California  are 
given  in  the  first  chapter  to  illustrate  the  earliest  legislation 
governing  the  appropriation  of  water.  As  shown,  the  sections 
simply  provide  for  the  posting  and  recording  of  notices,  and 
for  the  benefits  of  the  doctrine  of  relation.  They  include  no 
provision  for  public  inspection  at  any  stage.  They  are  like- 
wise silent  regarding  the  adjudication  of  water  rights  and 
the  public  distribution  of  water  in  accordance  with  decrees. 

A  little  reflection  will  convince  the  reader  that  the  goal 
sought  in  water  right  conflicts  is  the  distribution  of  water 
among  those  entitled  to  its  use.  Litigation  resulting  in  an 
adjudication  of  water  rights  is  but  the  means  to  this  end. 
Likewise,  an  orderly  system  for  the  proper  record  and  con- 
trol of  the  initiation  of  water  rights  is  designed  to  fix  the  pri- 
ority of  the  new  rights  so  that  the  water  may  be  distributed  in 
accordance  therewith  without  further  adjudication  or  litiga- 
tion. 

Legislation  regarding  water  rights  to  be  complete,  there- 
fore, must  provide  for  the  three  essentials :  the  acquirement  or 
initiation  of  rights;  the  definition  or  adjudication  of  existing 
rights;  and  the  distribution  of  water  among  those  entitled  to 
its  use.  In  the  following  paragraphs  the  main  provisions  of 
the  legislation  covering  these  three  points  will  be  discussed 
by  states,  beginning  with  Colorado. 

Colorado 

Acquirement  of  Rights. — The  first  statutes  regarding 
water  rights  adopted  in  the  various  western  states  were  pat- 
terned after  those  of  California.  The  first  state  to  make  any 
advance  was  Colorado  where  the  office  of  state  engineer  was 
established  in  1881. 

At  the  same  session  the  so-called  "Map  and  Statement" 
act  was  adopted  but,  owing  to  a  defective  title,  was  held  un- 

52 


WATER     RIGHT     LEGISLATION  53 

constitutional  in  1899.  A  second  act,  very  similar  to  the  first, 
was  passed  in  1903,  and  now  governs  the  acquirement  of 
rights.  It  provides  that  within  sixty  days  after  the  commence- 
ment of  the  surveys  or  of  the  actual  construction  of  any  ditch 
or  reservoir  or  enlargement  or  extension  thereof,  a  filing  must 
be  made  in  the  office  of  the  state  engineer  of  duplicate  maps 
and  statements  containing  the  information  required  by  the  act 
and  of  a  form  satisfactory  to  the  state  engineer.  If  satis- 
factory to  the  state  engineer  one  copy  is  filed  in  his  office  and 
the  other  certified  and  returned  to  the  claimant  who  must, 
within  90  days  from  date  of  commencement,  file  it  in  the  office 
of  the  county  clerk  of  county  in  which  the  headgate  or  reser- 
voir lies.  It  is  further  provided  that  a  certified  copy  of  the 
map  and  statement  shall  be  prima  facie  evidence  of  the  in- 
tent of  the  claimant.  The  Act  of  1881  provided  that  the  right 
dated  back  to  the  commencement  of  the  work  upon  compli- 
ance with  the  act  and  the  exercise  of  reasonable  diligence  in 
construction.  The  present  act  is  silent  on  this  important 
point,  but  where  all  the  prescribed  steps  are  taken  the  courts 
will  undoubtedly  hold  that  the  right  dates  from  the  com- 
mencement of  the  work. 

The  state  engineer  has  issued  a  circular  containing  the  list 
of  fees  (Act  of  1911),  text  of  forms,  and  the  rules  and  regula- 
tions in  regard  to  the  preparation  of  maps  and  statements. 
The  circular  states,  "It  is  compulsory  to  use  the  forms  of 
statements  and  affidavits  as  given  herein.  It  will  save  time  and 
delays."  There  is  no  question,  therefore,  but  that  the  state 
engineer  has  a  satisfactory  record  of  the  intention  of  new  ap- 
propriators  in  Colorado,  but  there  his  supervision  ends.  Other 
than  the  provision  that  due  diligence  in  construction  must  be 
exercised,  the  act  is  silent  regarding  any  record  of  proof 
thereof,  so  that  the  claimant,  in  case  of  dispute,  must  settle 
the  point  in  the  courts.  In  regard  to  the  acquirement  of 
rights,  therefore,  Colorado  has  but  slightly  improved  upon  the 
old  system. 

Adjudication  of  Rights. — Colorado  in  1879  and  1881 
adopted  a  special  procedure  for  the  adjudication  of  water 
rights.  It  was  provided  that  on  or  before  June  1,  1881,  every 
claimant  of  an  interest  in  a  ditch  or  reservoir  within  any 
water  district  should  file  with  the  clerk  of  the  district  court 
having  jurisdiction  a  sworn  statement  setting  forth  among 
other  things  the  date  of  his  appropriation  by  original  con- 
struction, also  by  enlargement  or  extension,  the  amount  of 
water  claimed,  the  existing  capacity  of  ditch  and  the  number 
of  acres  lying  under  and  being  or  proposed  to  be  irrigated 


54  .       ELEMENTS     OP     WESTERN     WATER     LAW 

by  each  ditch  or  reservoir.  Since  the  date  for  filing  such 
claims,  June  1,  1881,  an  adjudication  of  all  rights  to  water 
from  a  common  source  within  a  district  is  initiated  by  one  or 
more  interested  persons  (who  have  filed  the  required  claim) 
petitioning  the  district  court  having  jurisdiction.  The  judge 
either  sets  a  day  for  the  taking  of  evidence  in  open  court  or, 
as  is  the  usual  practice,  appoints  a  referee  to  take  and  report 
the  evidence,  make  an  abstract  and  findings  upon  same  and 
prepare  the  decree.  The  referee  gives  notice  of  the  times  and 
places  at  which  he  will  take  the  required  evidence  and  proofs 
of  priority.  In  regard  to  the  facts  to  be  ascertained,  the  act 
provides : 

Said  referee  shall  also  examine  all  witnesses  to  his  own  satisfac- 
tion, touching  any  point  involved  in  the  matter  in  question,  and  shall 
ascertain  as  far  as  possible  the  date  of  the  commencement  of  each 
ditch,  canal  or  reservoir,  with  the  original  size  and  carrying  capacity 
thereof,  the  time  of  the  commencement  of  each  enlargement  thereof, 
with  the  increased  carrying  capacity  thereby  occasioned,  the  length 
of  time  spent  in  such  construction  or  enlargement,  the  diligence  with 
which  the  work  was  prosecuted,  the  nature  of  the  work  as  to  difficulty 
of  construction,  and  all  such  other  facts  as  may  tend  to  show  compli- 
ance with  the  law  in  acquiring  the  priority  of  right  claimed  for  said 
ditch,  canal  or  reservoir;  and  upon  all  the  facts  so  obtained  shall  be 
determined  the  relative  priorities  among  the  several  ditches,  canals 
and  reservoirs,  the  volume  or  amount  of  water  lawfully  appropriated  by 
each,  as  well  as  by  means  of  the  construction,  as  by  the  enlargements 
thereof,  and  the  time  when  each  such  several  appropriations  took 
effect. 

After  closing  the  testimony  the  referee  prepares  the  re- 
port and  form  of  decree  and  files  it  with  the  court,  which  after 
properly  ordered  hearings  either  approves  or  modifies  the 
same. 

The  act  provides  in  detail  for  the  many  steps  in  the  pro- 
cedure and  is  sound  from  the  technically  legal  standpoint. 
/  Its  weakest  point  is  that  it  does  not  provide  for  representa- 
tion of  the  public  or  the  state.  Many  rf  the  older  decrees 
gave  to  each  party  the  amount  of  water  claimed,  which  was 
generally  far  in  excess  of  the  maximum  capacity  of  the  ditch. 
There  should  have  been  measurements  by  the  state  engineer 
of  the  ditches  and  the  acreage  irrigated,  but  he  is  not  men- 
tioned in  the  act.  Furthermore,  the  districts  with  which  the 
act  deals  do  not  always  include  an  entire  stream,  so  that  the 
adjudication  in  such  cases  is  but  partial.  Aside  from  the 
trouble  caused  by  the  excess  decrees,  the  act  is  to  be  com- 
mended as  providing  at  so  early  a  period  in  the  history  of  irri- 
gation a  special  procedure  whereby  most  of  the  rights  were 
determined. 


WATER     RIGHT     LEGISLATION  55 

Distribution  of  Water.— By  an  act  passed  in  1879  Col- 
orado divided  its  irrigated  territory  into  a  number  of  districts 
generally  comprising  a  designated  creek,  or  creeks,  and  tribu- 
taries. For  each  district  there  was  provided  a  water  commis- 
sioner to  be  appointed  by  the  governor  from  persons  recom- 
mended by  the  boards  of  county  commissioners  interested. 
The  principal  duty  of  the  water  commissioner  is  to  divide  the 
waters  of  a  stream  among  the  ditches  according  to  the  prior 
rights  of  each,  and  in  so  doing  to  wholly  or  partially  shut  the 
headgates  of  the  later  apprqpriators  to  satisfy  the  earlier 
rights.  He  is  also  authorized  to  shut  off  the  supply  from  any 
ditch  so  that  the  water  delivered  will  in  his  judgment  not 
allow  a  wasteful  or  wrongful  use.  The  changing  or  interfer- 
ence with  any  headgate  adjusted  by  the  water  commissioner 
is  a  misdemeanor  subject  to  a  fine  of  $300,  or  an  imprison- 
ment of  60  days,  or  both,  and  the  use  of  water  so  wrongfully 
taken  through  such  a  headgate  is  made  prima  facie  evidence 
of  the  guilt  of  the  user.  The  water  commissioners  are  further 
empowered  to  arrest  persons  meddling  with  headgates  or 
using  water  procured  through  such.  The  salary  of  the  water 
commissioner  is  $5  per  day  and  is  paid  by  the  counties  served. 
He  does  not  begin  work  until  called  on  by  two  or  more  per- 
sons controlling  ditches  in  his  district,  or  by  the  division 
engineer.  He  may  engage  necessary  assistants  at  $2.50  per 
day. 

In  1887  Colorado  was  divided  into  four  divisions  along 
drainage  lines  with  a  division  superintendent  in  charge  of  each 
division.  In  1903  the  number  was  changed  to  five  and  the  title 
to  division  engineers,  who  are  now  appointed  by  the  governor 
from  a  certified  list  prepared  by  the  state  engineer  after  an  ex- 
amination of  applicants.  The  division  engineers  receive  from 
$1,500  to  $2,500  per  year  and  traveling  expenses,  and  are  paid 
by  the  state.  The  division  engineers  have  general  control 
over  the  water  commissioners  of  the  several  districts  within 
their  divisions,  and,  under  the  general  supervision  of  the  state 
engineer,  execute  the  laws  relative  to  the  distribution  of 
water.  They  may  make  regulations  to  secure  the  fair  appor- 
tionment of  water  in  accordance  with  the  rights  of  priority. 
They  are  required  to  make  stream  measurements  and  rate 
ditches,  and  to  perform  such  other  duties  as  the  state  engineer 
may  direct.  Ditch  owners  feeling  themselves  injured  may 
appeal  from  the  acts  of  water  commissioner  to  division  engin- 
eer, and  from  the  latter  to  the  state  engineer. 

It  will  be  readily  appreciated  that  the  task  of  dividing 
water  among  ditches  with  valuable  crops  at  stake  is  a  serious 


56  ELEMENTS     OF     WESTERN     WATER     LAW 

undertaking,  and  an  account  of  the  daily  variations  in  the  flow 
of  mountain  streams  requires  much  local  study  and  experi- 
ence. Colorado's  plan  of  having  a  small  number  of  great 
divisions  along  drainage  lines  each  with  a  state  official  hav- 
ing jurisdiction  therein,  and  a  number  of  districts  within  each 
division  of  such  size  that  the  diversions  may  be  regulated  by 
one  man  and  an  assistant  or  two,  was  not  only  the  first  to  be 
fixed  by  statute  but  remains  the  type  to  be  followed  at  the 
present  day. 

Colorado  has  done  more  in  the  construction  and  operation 
of  reservoirs  than  any  other  western  state.  Among  the  many 
statutes  it  has  upon  this  subject  is  one  allowing  "the  owner 
of  a  reservoir  to  deliver  stored  water  into  a  ditch  entitled  to 
water  or  into  the  public  stream  to  supply  appropriations 
from  said  stream,  and  take  in  exchange  therefor  from  the 
public  stream  higher  up  an  equal  amount  of  water,  less  a 
reasonable  deduction  for  loss,  if  any  there  be,  to  be  determined 
by  the  state  engineer;  .  .  ." 

In  the  15th  Biennial  Report  of  the  state  engineer  of  Col- 
orado (1909-1910)  is  a  chapter  entitled  "Running  Reservoir 
Water  in  Natural  Streams,"  in  which  the  state  engineer 
describes  a  series  of  measurements  made  to  ascertain  the 
losses  in  running  water  from  mountain  reservoirs  to  lower 
ditches.  The  question  of  such  losses  is  an  important  one  in 
all  of  the  irrigation  states,  and  the  work  done  in  Colorado 
will  serve  as  a  guide  elsewhere. 

Wyoming 

Acquirement  of  Rights. — The  office  of  territorial  engineer 
in  Wyoming  was  created  in  1886  but  the  existing  legislation, 
of  which  the  state  is  so  proud,  came  with  statehood  in  1890. 
By  constitutional  provision  the  state  is  divided  into  four 
divisions  (the  limits  being  fixed  by  the  legislature)  with  a 
division  superintendent  at  the  head  of  each,  the  office  of  state- 
engineer  is  provided,  and  a  Board  of  Control  consisting  of 
the  state  engineer,  as  president,  and  the  four  division  superin- 
tendents, is  given  "supervision  of  the  waters  of  the  state,  and 
of  their  appropriation,  distribution  and  diversion"  subject  to 
legislation  thereon. 

The  statutes  adopted  in  1890  provide  a  method  of  ac- 
quiring rights  very  different  from  any  then  existing  in  this 
country.  Instead  of  posting  a  notice  or  starting  work  and 
thus  initiating  a  right,  the  intending  appropriator  is  required 
to  make  application  to  the  state  engineer  for  permission  to 
make  the  appropriation.  The  application  is  made  on  a  blank 
form  furnished  by  the  state  engineer  and  among  other  things 


WATER     RIGHT     LEGISLATION  57 

must  state  the  location  and  description  of  the  proposed  ditch, 
the  time  within  which  it  is  proposed  to  begin  construction,  the 
time  required  for  completion  of  construction  and  the  time  re- 
quired for  complete  application  of  water  to  proposed  use.  If 
for  irrigation,  the  application  must  also  give  the  legal  sub- 
divisions of  land  proposed  to  be  irrigated.  The  state  engineer 
must  approve  all  applications  made  in  proper  form  and  for 
beneficial  purposes,  except  where  there  is  no  unappropriated 
water,  or  where  the  proposed  use  conflicts  with  existing 
rights,  or  threatens  to  prove  detrimental  to  the  public  inter- 
est— in,  which  cases  he  must  reject  the  application. 

If  approved,  the  application  will  be  so  endorsed  and  re- 
turned to  the  applicant,  and  constitutes  his  authorization  to 
begin  construction  and  perfect  the  appropriation. 

In  cases  of  applications  in  excess  of  25  second  feet,  or  to 
reclaim  over  1000  acres,  the  state  engineer,  before  acting  on 
the  application,  may  require  additional  information  in  regard 
to  the  financial  ability  and  the  good  faith  of  the  applicant. 
In  the  endorsement  of  approval  on  the  application  it  is  re- 
quired that  actual  construction  must  begin  within  one  year 
from  date  of  approval,  that  the  construction  must  be  com- 
pleted within  five  years  from  said  date,  and  that  final  proof  of 
beneficial  use  of  water  must  be  submitted  within  two  years 
after  expiration  of  time  allowed  by  the  state  engineer  for  ap- 
plication to  beneficial  use.  The  state  engineer  has  authority 
to  limit  the  construction  period  and  the  period  required  for 
application  to  beneficial  use  to  a  less  time  than  asked  for,  and 
also,  for  good  cause  shown,  to  extend  the  time  for  the  com- 
pletion of  works  under  an  issued  permit,  and  also  the  time  for 
completing  the  application  of  water  to  beneficial  use.  Any 
party  may  appeal  from  any  action  taken  by  the  state  engineer 
to  the  Board  of  Control,  and  from  an  action  by  the  Board  to 
the  district  court. 

Applications  must  be  accompanied  by  maps  prepared  in 
accordance  with  the  regulations  of  the  state  engineer,  and 
profiles  and  plans  may  be  required  also. 

The  statutes  do  not  provide  the  nature  of  the  proof  to  be 
submitted  by  the  appropriator  on  the  completion  of  the  works 
and  on  the  complete  application  to  beneficial  use  other  than  it 
"being  made  to  appear  to  the  satisfaction  of  the  Board  of 
Control  that  any  application  has  been  perfected  in  accordance 
with  such  application,  and  the  endorsement  thereon."  On 
such  a  showing  the  Board  must  issue  a  certificate  setting 
forth  the  amount  of  the  appropriation  and  the  number  and 


58  ELEMENTS     OF     WESTERN     WATER     LAW 

date  of  priority  thereof,  which  date  shall  be  that  of  filing  the 
application  in  the  office  of  the  state  engineer. 

In  1903  a  statute  specially  providing  for  the  appropria- 
tion of  water  for  storage  in  reservoirs  was  adopted.  The 
steps  outlined  above  must  be  followed  except  that  a  descrip- 
tion of  the  land  to  be  irrigated  by  the  stored  water  is  not 
required  in  the  primary,  or  first,  permit.  Those  who  are  to 
apply  the  water  to  beneficial  use  may  secure  the  secondary 
permit  allowing  them  to  do  so.  The  latter  shall  not  be  given 
until  the  state  engineer  is  convinced  that  the  secondary  per- 
mittee has  a  sufficient  agreement  with  the  owner  of  the  reser- 
voir, the  primary  permittee.  The  1903  statute  also  provides 
for  special  supervision  by  a  water  commissioner  when  such 
stored  waters  are  allowed  to  run  to  points  of  use  through 
natural  channels  and  where  loss  through  wrongful  diversion 
is  probable  en  route.  When  deemed  necessary  for  the  protec- 
tion of  the  various  interests  involved,  the  state  engineer  may 
appoint  an  assistant  engineer  to  superintend  and  direct  the 
construction  work  on  dams  for  such  reservoirs. 

Definition  of  Rights. — Although  new  to  American  legisla- 
tion, the  Wyoming  method  for  the  acquirement  of  rights  is 
far  less  novel  than  its  method  for  the  definition  of  rights. 
In  1886  Wyoming,  then  a  territory,  adopted  the  Colorado 
system  of  adjudication  but  rejected  it  in  1890  for  its  present 
system. 

Instead  of  leaving  the  determination  of  water  rights  to 
chance  cases  between  two  or  more  claimants,  or  to  a  special 
procedure  initiated  by  a  claimant  as  in  Colorado,  Wyoming, 
having  by  its  constitution  declared  the  natural  waters  to  be 
the  property  of  the  state,  decided  to  make  its  new  Board  of 
Control  responsible  for  this  most  important  matter. 

The  Board  selects  the  streams  on  which  rights  are  to  be 
determined  and  fixes  a  time  for  the  taking  of  testimony.  The 
state  engineer  through  assistants  makes  a  survey  of  the 
ditches  and  the  land  irrigated  or  irrigable  thereunder  and 
measures  the  stream  and  carrying  capacity  of  the  ditches.  A 
printed  form,  called  "proof  of  appropriation",  is  sent  to  each 
claimant.  The  present  practice  is  to  have  the  division  super- 
intendent make  the  survey  and  have  the  claimant  make  the 
"proof  of  appropriation"  on  the  completion  of  the  survey  of 
his  individual  holding,  so  that  the  "proofs"  and  survey  will 
correspond. 

On  the  completion  of  the  survey  and  the  taking  of  testi- 
mony or  "proofs"  by  the  division  superintendent,  notice  is 
given  of  a  time  and  place  at  which  the  evidence  thus  as- 


WATER     RIGHT     LEGISLATION  59 

sembled  shall  be  open  to  inspection  of  the  various  claimants. 
A  regular  procedure  is  provided  for  contests  and  hearings  be- 
fore the  division  superintendent,  if  such  are  required  after  the 
open  inspection. 

After  the  contests,  all  the  evidence,  including  original 
proofs  and  testimony  taken  at  the  subsequent  hearings,  is 
transmitted  to  the  Board  of  Control.  At  its  first  regular 
meeting  thereafter,  the  Board  examines  all  the  evidence  and 
enters  an  order  establishing  the  priorities  of  the  water  rights, 
their  amounts,  and  the  character  of  use  of  each.  For  irriga- 
tion rights,  the  maximum  allowance  is  one-seventieth  of  a 
second  foot  to  the  acre.  Certificates  are  issued  to  each  claim- 
ant in  accordance  with  the  order  of  the  Board.  Appeals  from 
the  order  may  be  taken  to  the  district  court  within  sixty  days. 

Distribution  of  Water. — As  stated  above,  Wyoming  has 
been  divided  into  four  divisions  along  drainage  lines.  The 
superintendents  thereof  have  powers  similar  to  those  of  the 
division  engineers  in  Colorado,  regarding  the  division  of  the 
waters  among  ditches  entitled  thereto.  The  Board  of  Control 
creates  districts  where  necessary  and  these  districts  are  in 
charge  of  water  commissioners  upon  whom  the  actual  duty  of 
closing  headgates  rests.  The  entire  Wyoming  procedure  in 
regard  to  this  matter  is  copied  from  that  of  Colorado  and  what 
difference  exists  is  only  in  minor  details. 

Nebraska 

In  1889  Nebraska  adopted  legislation  providing  for  the 
appropriation  of  water  by  posting  notices  as  in  California,  but 
in  1895  introduced  an  entirely  new  system  closely  following 
that  of  Wyoming.  As  the  state  at  that  time  was  in  financial 
straits,  it  aimed  to  create  as  few  new  offices  as  possible  and 
therefore  provided  that  its  state  board  of  irrigation  should  be 
composed  of  the  governor,  attorney-general,  and  the  commis- 
sioner of  public  lands  and  buildings.  In  1911  the  name  of  the 
board  was  changed  to  "The  State  Board  of  Irrigation,  High- 
ways and  Drainage."  The  board  appoints  an  hydraulic  engi- 
neer as  secretary  and  he  is  known  as  the  state  engineer.  The 
striking  difference  between  the  statutes  of  Wyoming  and 
Nebraska  is  the  comparative  brevity  of  the  latter — otherwise 
the  Wyoming  language  is  closely  followed. 

Acquirement  of  Rights. — The  sections  providing  for  the 
acquirement  of  rights  are  practically  the  same  as  those  of 
Wyoming.  The  application  is  made  to  the  board  (the  secre- 
tary, or  state  engineer,  acting  for  the  board)  on  a  printed  form 
furnished  by  the  state  engineer,  and  when  in  proper  form  is 


60  ELEMENTS     OF     WESTERN     WATER     LAW 

approved  "if  there  is  unappropriated  water  in  the  source  of 
supply  .  .  .,  .  and  if  such  appropriation  is  not  otherwise 
detrimental  to  the  public  welfare."  It  is  elsewhere  further 
provided,  however,  that  "if  a  prior  appropriation  has  been 
made  to  water  the  same  land  to  be  watered  by  the  applicant" 
the  application  shall  be  rejected. 

It  was  undoubtedly  intended  by  those  who  drafted  the 
section  that  a  "prior  appropriation"  meant  a  perfected  appro- 
priation— that  is  actual  use,  or  potential  use,  of  water  on  the 
land.  It  is  rather  an  empty  expression  from  any  practical 
point  of  view  and  is  one  instance  where  the  Wyoming  section 
was  not  followed.  Unfortunately  for  the  state  the  expression 
was  construed  by  its  Supreme  Court  in  Farmers'  Irrigation 
District  v.  Frank  (100  N.  W.  286),  and  it  was  held  that  the 
board  could  not  approve  an  application  to  irrigate  any  land 
described  in  an  approved  application.  As  the  law  did  not 
provide  that  an  applicant  must  make  any  showing  of  his  title 
or  interest  in  the  land  described,  the  effect  of  the  decision  was 
to  deprive  one  of  his  right  to  appropriate  water  for  the  simple 
reason  that  some  promoter  had  described  his  land  in  a  former 
application  which  had  been  approved  without  any  notice  to 
the  land  owner. 

In  the  case  cited,  Frank  had  described  thousands  of  acres 
belonging  to  residents  of  the  Farmers'  Irrigation  District. 
The  case  was  decided  in  1904  and  although  it  evoked  bitter 
criticism  from  those  deprived  of  what  they  believed  to  be  a 
"natural  right"  the  section  was  not  amended  until  1911,  when 
the  following  words  were  inserted:  "...  and  no  permit 
to  irrigate  any  land  shall  be  allowed  unless  the  owner  or 
owners  of  such  land  shall  give  consent  to  the  same  in  proper 
form,  duly  acknowledged  before  some  officer  legally  quali- 
fied to  take  acknowledgements." 

By  a  1913  amendment  it  is  provided  that  the  cost  of  pro- 
motion and  engineering  work  shall  not  be  considered  as  part 
of  the  cost  of  construction,  and  that  one-tenth  of  the  total 
construction  work  shall  be  completed  in  one  year.  It  is  also 
provided  that  in  the  case  of  an  application  for  power  pur- 
poses, the  applicant,  after  the  approval  of  such  application, 
shall  file  a  monthly  statement  showing  the  actual  amount  of 
moneys  expended  for  "'right  of  way  and  land,  labor,  salaries, 
material  and  machinery,  not  including  construction  equip- 
ment, delivered  upon  the  ground.  *  *  *" 

Definition  of  Rights. — The  "definition  of  the  priorities  of 
right  to  use  the  public  waters  of  the  state"  is  left  to  the  board 
of  irrigation.  Instead  of  fixing  a  detailed  procedure  as  in  Wy- 


WATER     RIGHT     LEGISLATION  61 

oming  the  statute  provides  that  "the  method  of  determining 
the  priority  and  amount  of  appropriation  shall  be  determined 
by  the  said  state  board.  The  board  accordingly  has  adopted 
rules  to  govern  the  taking  of  "proofs  of  appropriation"  and 
hearings  in  cases  of  contests. 

As  in  the  case  of  applications  to  acquire  rights,  the  real 
work  is  left  to  the  state  engineer.  Most  of  the  determinations 
of  the  old  rights  have  been  made  without  actual  -surveys  by  the 
state  engineer.  The  state  was,  therefore,  quickly  covered, 
but  it  is  probable  that  in  some  cases  larger  acreages  were 
allowed  than  should  have  been. 

After  the  completion  of  the  determination  "certificates  of 
appropriation"  are  issued  to  appropriators,  as  in  Wyoming, 
the  maximum  allotment  for  irrigation  being  one  second  foot 
for  each  70  acres  and  in  no  case  to  exceed  three  acre  feet  per 
year  (as  amended  in  1911).  Appeals  may  be  taken  to  the 
district  court  within  60  days  of  the  determination. 

Distribution  of  Water. — The  system  for  dividing  water 
among  the  ditches  entitled  to  its  use  is  the  same  as  in  Colorado 
and  Wyoming.  By  statute  the  state  has  been  divided  into  two 
divisions  with  division  superintendents  in  charge.  Before 
1911  the  title  was  "under-secretary". 

Prior  to  1911  the  state  board  created  districts  within  the 
division  on  the  petition  of  interested  parties,  but  in  1911  the 
board  was  empowered  to  divide  the  divisions  into  subdivis- 
ions and  the  latter  into  districts  as  they  believed  necessary. 
The  board  appoints  one  water  commissioner  for  each  dis- 
trict. (Prior  to  1911  the  title  was  "under-assistant.")  In 
1911  it  was  provided  that  appropriators  on  April  first  of  each 
year  must  give  the  division  superintendent  a  list  of  the  lands 
to  be  watered  during  the  year.  Until  1915,  the  water  com- 
missioners were  paid  by  counties.  The  statute  was  amended 
in  1917  to  provide  for  their  payment  by  the  state  board.  Ne- 
braska is  the  first  state  to  so  provide,  but  the  unanimous 
recommendation  of  those  in  charge  of  water  distribution  in 
all  of  the  western  states  is  that  the  state,  and  not  the  county, 
should  pay  the  salary  and  expenses  of  the  water  masters,  or 
commissioners. 

Idaho 

The  office  of  state  engineer  was  created  in  Idaho  in  1895, 
but  his  duties  were  principally  in  regard  to  operations  under 
the  Carey  Act  until  the  adoption  of  the  "new  legislation"  in 
1903. 

Acquirement  of  Rights. — Idaho  follows  the  system  intro- 
duced by  Wyoming  of  making  intending  appropriators  apply 


62  ELEMENTS     OF     WESTERN     WATER     LAW 

to  the  state  engineer  on  printed  forms  furnished  by  him.  The 
instructions  issued  by  the  state  engineer  state  that  "applica- 
tion will  not  be  accepted  nor  permit  granted  thereunder,  un- 
less the  following  instructions  are  carefully  carried  out,  in 
preparing  the  application  blank  and  maps" — it  being  required 
that  duplicate  maps  must  be  filed  before  the  permit  will  be 
granted  and  where  the  application  is  for  more  than  25  second 
feet  the  maps  must  be  prepared  from  actual  surveys. 

As  the  Idaho  constitution  provides  that  "The  right  to 
divert  and  appropriate  the  unappropriated  waters  of  any 
natural  stream  to  beneficial  uses,  shall  never  be  denied,"  the 
right  of  rejecting  applications  deemed  detrimental  to  the  pub- 
lic welfare,  etc.,  has  not  been  delegated  to  the  state  engineer, 
but  he  must  approve  all  applications  made  in  proper  form  and 
contemplating  application  to  beneficial  use. 

The  maximum  allowance  for  irrigation  purposes  is  one 
second  foot  to  50  acres,  and  for  storage  5  acre  feet  per  acre. 
The  maximum  time  allowed  to  complete  the  construction  of 
works  is  five  years  and  that  for  applying  water  to  beneficial 
use  six  years  (four  years  in  the  1903  statute)  in  addition  there- 
to. If  application  to  beneficial  use  is  not  completed  within 
the  period  allowed,  the  date  of  priority  is  advanced  from  the 
date  of  filing  by  an  amount  equal  to  the  additional  time 
which  elapses  before  such  application  is  complete.  Delays 
due  to  government  legislation  or  litigation  operate  to  ex- 
tend the  time  allowed  for  completion  of  construction.  A 
1915  statute  provides  that,  for  applications  involving  more 
than  25,000  acres,  proof  of  application  to  beneficial  use  may 
be  made  at  any  time  within  ten  years  after  the  completion  of 
the  works ;  and  that  in  such  cases  it  is  only  necessary  to  show- 
that  the  quantity  of  water  applied  for  has  been  used  within 
the  limits  of  the  project,  regardless  of  whether  each  acre 
within  the  project  has  been  irrigated. 

It  is  further  required  that  one-fifth  of  the  construction 
work  shall  be  done  in  one-half  the  time  allowed  and  adverse 
claimants  may  contest  the  right  when  this  is  not  done.  For 
appropriations  not  in  excess  of  25  second  feet  construction 
work  must  be  commenced  within  sixty  days  of  issuance  of  the 
permit,  and  for  other  appropriations  a  bond  in  an  amount  to 
be  fixed  by  the  state  engineer,  not  exceeding  $10,000,  must 
be  filed  within  the  said  sixty  days  with  the  state  engineer 
as  a  guarantee  that  the  work  will  be  'completed  as  provided 
in  the  permit.  In  order  to  clear  the  records  of  the  state 
engineer's  office  of  permits  on  which  the  owner  has  fai'ed 
to  comply  with  the  requirements  as  to  date  of  commencement 


WATER     RIGHT     LEGISLATION  63 

of  work,  filing  of  bond,  completion  of  one-fifth  of  the  work  in 
one-half  the  time  or  final  completion,  the  state  engineer  shall 
notify  the  owner  giving  the  grounds  on  which  concellation  is 
proposed  and  allowing  30  days  to  show  cause  why  the  permit 
should  not  be  cancelled.  Unless  sufficient  showing  is  made 
by  the  owner  of  the  permit  the  state  engineer  may  cancel  it, 
the  owner  if  aggrieved  having  the  right  of  appeal  to  the  dis- 
trict court. 

The  1903  Idaho  statute  was  the  first  to  provide  a  regular 
procedure  for  proofs  of  completion  of  construction  and  also 
proofs  of  complete  application  to  beneficial  use.  At  least  sixty 
days  prior  to  the  date  set  for  the  completion  of  the  works  the 
holder  of  the  permit  must  notify  the,  state  engineer  of  readiness 
to  submit  proof,  on  a  form  furnished  by  him  containing  among 
other  information  the  amount  of  water  such  works  can  carry 
and,  if  for  irrigation,  the  description  of  the  land  which  can  be 
irrigated.  In  cases  of  diversions  in  excess  of  50  second  feet 
the  facts  set  forth  in  the  notice  must  be  certified  to  by  a  com- 
petent irrigation  engineer.  If  the  application  is  for  over  6.4 
second  feet,  the  notice  is  published  by  the  state  engineer  in  a 
paper  of  general  circulation  in  county  where  works  are  sit- 
uated and  such  publication  also  states  the  time  and  place  of 
submission  of  final  proof.  Before  the  time  set  the  state  engi- 
neer has  the  works  inspected  and  after  such  time,  and  the 
consideration  of  any  protests  which  may  be  made,  he  issues  a 
certificate  stating  among  other  things  the  purpose  of  works, 
the  quantity  of  water  which  can  be  carried  to  place  of  use, 
and,  if  for  irrigation,  a  description  of  the  lands  for  which  water 
has  been  made  available  by  the  works. 

The  same  procedure  is  followed  in  submitting  proof  of 
complete  application  to  beneficial  use.  If  satisfied  that  the 
law  has  been  complied  with  after  an  examination  of  all  the 
evidence  in  relation  to  such  final  proof,  the  state  engineer 
issues  a  license  confirming  such  use.  The  date  of  priority  of 
right  under  such  license  is  that  of  filing  of  application  in  state 
engineer's  office. 

Adjudication  of  Rights.— The  1903  Idaho  statute  left  the 
adjudication  of  water  rights  to  the"  courts,  but  provided  that 
actions  could  be  initiated  by  a  water  commissioner  for  the 
adjudication  of  rights  to  the  waters  of  a  stream  which  had 
been  partly  adjudicated. 

It  was  also  provided  that  whenever  a  suit  to  adjudicate 
rights  is  filed  the  court  "shall  request  the  state  engineer  to 
make  an  examination  of  such  stream,  and  the  canals  and 
ditches  diverting  water  therefrom,  and  of  all  the  land  being 


64  ELEMENTS     OF     WESTERN     WATER     LAW 

irrigated  by  such  canals  and  ditches  and  other  works,"  and 
the  map  and  report  resulting  from  such  examination  shall  be 
"accepted  as  evidence  in  the  determination  of  such  rights  by 
such  court." 

The  provision  for  the  initiation  of  actions  by  a  water 
commissioner  was  declared  unconstitutional  in  Bear  Lake  v. 
Budge  (75  Pac.  615).  In  Boise  City  Irrigation  &  Land  Com- 
pany v.  Stewart  (77  Pac.  25)  the  provision  for  requesting  the 
state  engineer  to  examine  and  report  upon  the  physical  condi- 
tions was  held  to  be  merely  directory  and  not  mandatory.  The 
preparation  of  physical  data  by  the  state  engineer  has  been 
so  satisfactory,  however,  that  it  is  certain  that  the  court  will 
request  his  services  in  most  cases.  The  costs  of  his  work  are 
apportioned  by  the  court  among  the  parties  to  the  suit,  become 
a  lien  against  the  real  property  in  question,  and,  if  necessary, 
are  collected  as  ordinary  taxes. 

Distribution  of  Water. — The  1903  act  provided  for  three 
water  divisions,  for  the  appointment  by  the  governor  of  a 
water  commissioner  for  each  division,  and  for  a  state  board  of 
irrigation  to  be  composed  of  the  three  water  commissioners 
and  the  state  engineer.  The  board  had  authority  to  divide  the 
divisions  into  water  districts  and  to  "devise  all  needful  rules 
for  the  distribution  of  water."  In  1915  the  sections  providing 
for  the  water  commissioners  and  prescribing  the  duties  thereof 
were  repealed,  and  the  duties  of  the  commissioners  were 
vested  in  the  state  engineer. 

Utah 

As  the  first  Mormon  settlements  in  Utah  were  absolutely 
dependent  upon  agriculture,  and  that  upon  irrigation,  the  need 
of  legislation  regarding  water  rights  was  early  recognized. 
The  first  territorial  legislature,  in  1852,  gave  the  control  of  all 
"water  privileges"  to  the  county  courts  and  authorized  them 
to  "exercise  such  powers  as  in  their  judgment  shall  bes-t 
.  - .  .  subserve  the  interests  of  the  settlements  in  the  dis- 
tribution of  water  for  irrigation  or  other  purposes."  The 
court  of  Salt  Lake  County  was  the  only  one  to  act  under  the 
statute  and  it  granted  water  rights,  settled  disputes  in  regard 
thereto  and  appointed  water  masters  to  distribute  water 
according  to  decrees.  The  court  at  that  very  early  date  acted 
about  as  the  Board  of  Control  does  in  Wyoming  today,  and 
if  the  other  county  courts  had  done  likewise  there  would  have 
been  no  need  of  further  legislation. 

Due  to  the  neglect  of  the  courts,  other  than  that  of  Salt 
Lake  County,  to  enforce  the  law,  other  legislation  was  adopted 
in  1880  and  in  1897— the  latter  following  the  1872  California 


WATER     RIGHT     LEGISLATION  65 

statute.  The  office  of  state  engineer  was  also  created  in  1897, 
but  he  had  little  authority  regarding  water  rights  until  1903 
when  the  present  statute  was  adopted. 

Acquirement  of  Rights. — The  present  system  of  acquiring 
water  rights  in  Utah  is  based  on  that  of  Wyoming  and  Ne- 
braska. The  application  contains  the  additional  information 
of  "the  time  during  which  it  (the  water)  is  to  be  used  each 
year" — that  is  the  right  is,  or  may  be,  restricted  to  certain 
periods  within  the  year.  A  notice  of  the  application  must  be 
published  for  30  days  in  a  newspaper  of  general  circulation 
within  the  watershed  so  that  a  protest  may  be  made  to  the 
state  engineer  by  parties  claiming  prospective  injury  and  thus 
assist  him  in  determining  whether  the  new  appropriation  will 
conflict  with  existing  rights. 

The  1903  statute  provided  for  a  hearing  in  case  of  protests, 
but  in  1904  such  a  procedure  was  prohibited  by  court  order. 
No  appeal  was  taken  to  the  supreme  court  and  the  provision 
was  omitted  when  the  law  was  re-enacted  in  1905. 

In  1903  statute  also  authorized  the  state  engineer  to 
reject  an  application  which  he  deemed  detrimental  to  the 
public  welfare.  Following  such  an  action  in  1904  the  state 
engineer  was  reversed  by  court  decree  and,  again,  the  case 
was  not  appealed  and  the  provision  was  omitted  in  the  1905 
statute.  By  an  amendment  of  1911,  the  state  engineer  must 
approve  all  applications  except  where  they  will  conflict  with 
existing  rights,  or  where,  after  submission  of  the  question  to 
court,  the  latter  decides  that  the  application  is  not  for  the 
most  beneficial  use  of  the  water. 

By  an  amendment  of  1911,  Utah  follows  the  1903  Idaho 
statute  regarding  time  of  beginning  and  completing  work  and 
application  to  beneficial  use,  but  the  state  engineer  is  author- 
ized, for  good  cause  shown,  to  extend  the  five-year  and  four- 
year  periods  to  a  maximum  aggregate  allowance  of  fourteen 
years  from  date  of  approval  of  application. 

Proof  of  completion  of  work  is  made  on  regular  forms, 
attested  by  two  witnesses,  and  accompanied  by  certified 
detailed  maps.  The  state  engineer  issues  a  certificate  of 
appropriation  when  satisfied  that  "the  appropriation  has  been 
effected." 

Adjudication  of  Rights. — Under  the  system  adopted  in 
1903,  the  adjudication  of  rights  is  initiated  by  the  state  engi- 
neer making  a  complete  survey  of  the  "river  system  or  water 
source"  and  collecting  all  necessary  tlata.  After  completion 
of  survey  a  statement  is  filed  with  clerk  of  district  court, 
who  mails  form  for  statement  of  claim  to  each  claimant.  The 


66  ELEMENTS     OF     WESTERN     WATER     LAW 

state  engineer  tabulates  the  claim  and  files  such  with  clerk  of 
court.  The  court  may  appoint  a  referee  to  take  further  testi- 
mony. The  decree  is  rendered  by  the  court  based  on  the  maps 
and  data  of  state  engineer,  the  statements  of  claims,  and  the 
testimony  taken  before  referee.  A  certificate  is  issued  to  each 
owner  in  accordance  with  the  decree. 

The  system  has  not  yet  been  fairly  tried  as  the  surveys 
and  collection  of  data  have  not  been  completed  for  the  first 
stream  chosen — the  Weber  River.  The  early  work  was  done 
on  an  elaborate  scale,  and  the  funds  necessary  for  completion 
are  not  available. 

Distribution  of  Water. — The  state  engineer  is  authorized 
to  divide  the  state  into  water  districts  and  a  water  commis- 
sioner is  appointed  by  the  governor  for  each  district  from 
persons  recommended  by  the  state  engineer.  These  water 
commissioners  have  the  same  duties  as  in  the  states  already 
discussed,  the  only  innovation  is  that  the  state  has  not  been 
divided  into  large  divisions  with  superintendents  in  control. 

Nevada 

Nevada  first  legislated  regarding  water  claims  in  1866 
when  it  provided  for  the  filing  of  certificates  and  plats  by 
intending  appropriators.  Further  legislation  was  adopted  in 
1889  and  in  1899 — the  latter  being  copied  after  the  Wyoming 
statute,  but,  as  the  county  instead  of  the  state  was  made  the 
unit,  nothing  was  done.  In  1903,  through  the  efforts  of  Sen- 
ator Newlands,  who  had  been  probably  the  foremost  leader  in 
securing  the  passage  of  the  National  Reclamation  Act  of 
June  17,  1902,  the  Nevada  legislature  created  the  office  of 
state  engineer  and  provided  for  the  definition  of  water  rights 
and  the  distribution  of  water.  The  influence  of  the  expected 
benefits  of  the  Reclamation  Act  on  the  passage  of  the  1903 
Nevada  act  is  shown  by  the  preamble  to  the  latter,  wherein 
the  entire  Reclamation  Act  is  recited  and  in  addition  many 
paragraphs  are  included  presenting  the  opportunities  for  irri- 
gation development  in  Nevada  and  the  need  of  a  determination 
of  rights  before  national  aid  could  be  given. 

Acquirement  of  Rights. — The  1903  statute  contained  no 
provision  for  the  acquirement  of  rights,  but  it  was  supple- 
mented in  1^05  by  sections  so  providing  copied  from  the  Wyo- 
ming and  Nebraska  statutes  and  containing  the  requirement 
of  publication  first  adopted  in  Utah.  In  1907  the  maximum 
quantity  which  could  be  appropriated  for  irrigation  purposes 
was  fixed  at  three  acre-feet  per  acre  per  year.  This  maximum 
annual  allowance  was  changed  in  1909  and  1913,  and  is  now  as 
follows : 


WATER     RIGHT     LEGISLATION  67 

• 

Where  water  is  diverted  for  direct  irrigation,  not  to  exceed  one 
one-hundredth  of  one  cubic  foot  per  second  for  each  acre  of  land  irri- 
gated; the  measurement  to  be  taken  where  the  main  ditch  enters  or 
becomes  adjacent  to  the  land  to  be  irrigated;  due  allowance  for  loss 
to  be  made  by  the  state  engineer  in  permitting  additional  water  to  be 
diverted  into  said  ditch.  Where  water  is  stored,  not  to  exceed  four 
acre  feet  for  each  acre  to  be  supplied;  that  is,  four  acre  feet  per  acre 
stored  in  the  reservoir,  the  losses  of  evaporation  and  transmission  to 
be  borne  by  the  appropriator. 

Adjudication  of  Rights. — The  1903  statute  provided  a 
method  for  defining  rights  which  followed  the  Wyoming  sys- 
tem except  that  no  details  of  procedure  were  prescribed — it 
being,  in  that  respect,  similar  to  the  1895  Nebraska  statute. 
In  1913  the  "water  code"  was  re-enacted  in  much  expanded 
form,  and  details  of  procedure  in  determining  rights  were 
provided.  The  Supreme  Court  of  Nevada  in  Anderson  v. 
Kearney  (142  Pac.  803)  held  that  the  order  of  determination 
(under  the  1913  statute)  was  administrative  only — that  with- 
out a  decree  of  court  an  order  of  an  administrative  officer  was 
not  final.  The  "code"  was  accordingly  amended  in  1915  to  con- 
form to  the  new  Oregon  procedure  (described  herein  under 
"Oregon"). 

Distribution  of  Water. — In  1901  a  state  board  of  irrigation 
consisting  of  the  governor,  attorney-general  and  surveyor- 
general  was  created  to  co-operate  with  federal  bureaus  in 
stream  gauging  and  irrigation  investigations.  In  1903  the 
state  engineer  was  made  a  member  and  secretary  of  the  board. 
Formerly  the  board  had  authority  to  divide  the  state  "into 
such  water  divisions  or  water  districts  as  seem  to  it  advisable," 
and  to  appoint  water  commissioners  to  divide  the  waters  of 
streams  according  to  priorities,  but  the  power  to  define  dis- 
tricts is  now  in  the  state  engineer  and  the  power  to  appoint 
is  in  the  governor. 

New  Mexico,  North  Dakota,  Oklahoma  and  South  Dakota 

In  accordance  with  resolutions  adopted  by  the  legisla- 
tures of  Oregon  and  Washington  in  1903-1904  a  commission 
was  appointed  by  the  governor  of  each  state  to  draft  a  water 
code.  As  a  result  of  a  joint  session  of  the  two  commissions 
with  officials  of  the  United  States  Reclamation  Service,  Mr. 
Morris  Bien,  supervising  engineer  of  the  Service  in  charge  of 
land  and  legal  matters,  agreed  to  prepare  a  draft  for  the  com- 
missions. Mr.  Bien's  draft  was  widely  circulated  in  order  to 
receive  the  benefit  of  the  criticism  of  many  interested  in  the 
subject.  The  corrected  draft  is  generally  referred  to  as  the 
"Bien  Code,"  and,  although  Mr.  Bien  aimed  to  take  what  he 


68  ELEMENTS     OF     WESTERN     WATER     LAW 

• 

considered  best  from  all  the  existing  codes,  most  closely  fol- 
lows the  1903  Utah  statute.  It  was  not  adopted  in  Oregon  and 
Washington  but  was  in  North  Dakota,  Oklahoma  and  South 
Dakota  in  1905  and  in  New  Mexico  in  1907. 

Acquirement  of  Rights. — As  provided  in  the  1903  Utah 
statute,  applications  must  be  made  to  the  state  engineer  who, 
for  stated  causes,  has  the  power  of  rejection.  Notice  of  appli- 
cation is  published  and  evidence  of  interested  parties  consid- 
ered. In  case  of  approval  the  state  engineer  fixes  the  time 
for  completion  of  works  and  for  application  to  beneficial  use, 
not  exceeding  five  years  and  four  years  additional  respectively 
from  date  of  approval.  He  has  the  power,  for  causes  stated, 
to  extend  such  times  three  years  and  two  years  respectively. 
Regarding  the  proof  of  completion  of  works  and  application 
to  beneficial  use  the  code  follows  Idaho. 

Adjudication  of  Rights. — That  part  of  the  code  dealing 
with  the  determination  of  water  rights  is  restricted  to  five 
short  sections.  The  state  engineer  makes  "hydrographic  sur- 
veys and  investigations  of  each  stream  system  .  .  .  obtain- 
ing and  recording  all  available  data  for  the  determination, 
development  and  adjudication  of  the  water  supply  of  the 
state."  Upon  completion  of  survey,  the  state  engineer  deliv- 
ers what  data  is  deemed  necessary  to  the  attorney  general  who 
enters  "suit  on  behalf  of  the  state  for  the  determination  of  all 
rights  to  the  use  of  such  water,  in  order  that  the  amount  of 
unappropriated  water  subject  to  disposition  by  the  state  under 
the  terms  of  this  act  may  become  known." 

In  any  suit  over  water  rights  all  claimants  must  be  made 
parties  and,  when  such  suit  is  filed,  the  court  shall  direct 
the  state  engineer  to  make  surveys  and  assemble  the  neces- 
sary data.  The  aim  of  the  sections  is  to  allow  the  state 
engineer  to  secure  a  determination  of  the  rights  on  streams 
most  used  for  irrigation  and  also  to  provide  for  a  complete 
determination  on  those  streams  where  suit  is  entered  by  pri- 
vate parties. 

Distribution  of  Water. — The  distribution  of  water  is 
cared  for  as  in  the  states  previously  discussed.  The  state  is 
divided  by  the  legislature  into  three  or  more  divisions  along 
drainage  lines.  A  commissioner  is  appointed  for  each  division 
and  the  commissioners  with  the  state  engineer  form  the  board 
of  water  commissioners.  The  state  engineer  divides  each 
division  into  districts  and  the  commissioner  appoints  a  water 
master  for  each  district.  In  1913  the  office  of  commissioner  in 
South  Dakota  was  abolished,  and  the  duties  thereof  given  to 
the  state  engineer. 


WATER     RIGHT     LEGISLATION  69 

Oregon 

As  stated  above,  Oregon  appointed  a  "water  code  commis- 
sion" in  1903,  but  little  was  done  at  the  1905  session  of  the 
legislature  beyond  creating  the  office  of  state  engineer.  In 
1907  a  second  commission  recommended  the  "Bien  Code,"  but 
it  did  not  pass.  In  1909,  following  the  recommendation  of  a 
commission  which  had  its  disposal  the  able  assistance  of 
Clarence  T.  Johnston,  then  State  Engineer  of  Wyoming,  a 
code  was  adopted  which  varies  but  little  from  that  of  Wyo- 
ming. 

The  state  is  divided  into  two  water  divisions  with  a  divis- 
ion superintendent  in  charge.  The  two  superintendents  and 
the  state  engineer  form  the  board  of  control  (now  called  "state 
water  board").  Contrary  to  the  uniform  practice  elsewhere 
all  three  officers  are  elected  instead  of  appointed. 

The  only  striking  departure  from  the  Wyoming  system 
is  the  procedure  for  denning  rights.  The  sections  in  regard 
thereto  are  almost  word  for  word  the  Wyoming  sections  up 
to  and  including  the  determination  of  rights  by  the  state  water 
board.  Instead  of  considering  such  final  unless  appealed  from, 
the  Oregon  statute  provides  that  a  certified  copy  of  the  deter- 
mination and  the  original  evidence  shall  be  filed  with  the 
clerk  of  the  circuit  court  which  fixes  a  time  for  hearing  the 
determination.  The  court  after  the  necessary  hearings  either 
affirms  or  modifies  the  determination  of  the  board. 

A  minor  difference  in  the  method  of  adjudication  is  that 
the  determination  in  Oregon  is  initiated  not  by  the  board  of 
its  own  motion,  but  by  petition  of  one  or  more  water  users 
upon  the  stream.  As  the  board  always  has  before  it  more  peti- 
tions for  determination  than  it  can  act  upon,  it  is  clear  that  the 
change  in  procedure  is  of  no  practical  importance. 

The  new  legislation  adopted  in  the  western  states  prior  to 
the  1909  statute  in  Oregon,  is  silent  in  regard  to  riparian 
rights,  although  such  rights  are  recognized  in  Nebraska,  Okla- 
homa and  the  Dakotas.  The  Oregon  statute,  however,  pro- 
vides that  the  use  of  riparian  proprietors  shall  be  limited  to 
the  extent  of  the  beneficial  use  prior  to  the  passage  of  the  act 
or,  where  works  were  under  construction  at  the  date  of  pas- 
sage, to  the  amount  of  water  applied  to  beneficial  use  in  a 
reasonable  time  as  fixed  by  the  state  water  board.  In  Oregon 
it  is  well  settled  that  a  riparian  owner  may  elect  to  rely  upon 
his  riparian  rights  or  upon  his  rights  by  appropriation,  but  he 
cannot  do  both  as  in  California.  (In  re  Sucker  Creek,  163 
Pac.  430.)  Probably  on  account  of  this  necessity  of  choosing 
between  the  two  and  also  on  account  of  the  time  limitation  of 


70  ELEMENTS     OF     WESTERN     WATER     LAW 

the  riparian  doctrine  fixed  in  Hough  v.  Porter  (see  Chapter 
II),  very  few  claimants  appearing  before  the  water  board 
claim  as  riparian  owners.  Prior  to  March  1,  1917,  the  water 
board  had  determined  the  rights  of  3664  claimants,  a  very 
limited  number  of  whom  had  set  up  riparian  rights  and,  with 
one  exception,  all  proved  rights  by  appropriation. 

California 

Acquirement  of  Rights. — The  office  of  state  engineer  was 
established  by  the  California  legislature  in  1878  for  "the 
acquirement  of  data  upon  which  the  state  might  formulate  the 
policy  and  frame  legislation  respecting  irrigation  matters." 
Although  the  office  continued  for  10  years  and  assembled 
much  valuable  data,  it  was  unsuccessful  in  securing  any  new 
legislation.  In  1900  the  California  Water  and  Forest  Asso- 
ciation, in  co-operation  with  Irrigation  Investigations  of  the 
United  States  Department  of  Agriculture,  made  a  study  of 
water  right  conditions  on  eight  typical  California  streams,  and 
in  1902  framed  a  draft  of  a  "water  code"  for  submission  to  the 
legislature  of  1903.  The  antagonism  to  the  proposed  bill  was 
so  bitter  that  it  was  not  introduced. 

In  1911  an  act  governing  the  appropriation  of  water  for 
power  purposes  only  was  passed.  Applications  to  appropriate 
were  made  to  a  board  of  three,  called  the  State  Board  of  Con- 
trol. At  a  special  session  of  the  legislature  in  1911-1912,  the 
name  of  the  board  was  changed  to  State  Water  Commission. 
Under  the  original  1911  act  licenses  for  power  purposes  were 
limited  to  twenty-five  years.  Under  the  amended  1911-1912 
act,  the  license  period  was  extended  to  forty  years. 

The  Conservation  Commission  of  California  was  created 
in  1911.  One  of  its  duties  was  "to  prepare  and  recommend 
to  the  legislature  laws,  statutes,  and  constitutional  amend- 
ments revising,  systematizing,  and  reforming  the  laws  of  this 
state  upon  forestry,  water,  the  use  of  water,  wrater  power, 
electricity,  electrical  and  other  power.  .  .  ."  As  a  result 
of  the  work  of  the  Conservation  Commission,  the  State  Water 
Commission  Act  was  passed  by  the  1913  legislature,  but  was 
withheld  by  referendum  and  did  not  go  into  effect  until  De- 
cember 19,  1914. 

The  act  is  similar  to  the  new  legislation  followed  in 
Wyoming  in  regard  to  the  initiation  of  rights,  except  that  a 
commission  of  three  members  passes  upon  such  applications 
instead  of  the  state  engineer.  In  its  declaration  of  waters 
which  are  public  waters  and  subject  to  appropriation,  the  act 
excepts  such  waters  as  "have  been  or  are  being  applied  to 
useful  and  beneficial  purpose  upon,  or  in  so  far  as  such  waters 


WATER     RIGHT     LEGISLATION  71 

are  or  may  be  reasonably  needed  for  useful  and  beneficial  pur- 
poses upon  lands  riparian  thereto."  Regarding  use  upon  ripa- 
rian lands,  the  act  further  provides: 

If  any  portion  of  the  waters  of  any  stream  shall  not  be  put  to  a 
useful  or  beneficial  purpose  to  or  upon  lands  riparian  to  such  stream 
for  any  continuous  period  of  ten  consecutive  years  after  the  passage 
of  this  act,  such  nonapplication  shall  be  deemed  to  be  conclusive  pre- 
sumption that  the  use  of  such  portions  of  the  waters  of  such  stream 
is  not  needed  upon  said  riparian  lands  for  any  useful  or  beneficial  pur- 
pose, and  such  portion  of  the  waters  of  any  stream  so  nonapplied, 
unless  otherwise  appropriated  for  a  useful  and  beneficial  purpose  is 
hereby  declared  to  be  in  the  use  of  the  state  and  subject  to  appropria- 
tion in  accordance  with  the  provisions  of  this  act. 

Section  20  of  the  act  contains  a  provision  not  found  in  the 
other  western  water  codes.  It  is  that  at  any  time  after  the 
expiration  of  20  years  after  the  granting  of  a  license  "the 
state  or  any  city,  city  and  county,  municipal  water  district, 
irrigation  district,  lighting  district  or,  political  subdivison  of 
the  state"  shall  have  the  right  to  purchase  the  works  and 
property  used  under  said  license,  and  the  licensee  or  permittee 
shall  accept  such  permit  or  license  "under  the  conditions 
precedent  that  no  value  whatever  in  excess  of  the  actual 
amount  paid  to  the  state  therefor  shall  at  any  time  be  assigned 
to  or  claimed  for  any  permit  or  license  granted  or  issued  under 
the  provisions  of  this  act,"  in  case  of  public  service  regulation 
or  in  case  of  sale  to  the  public  units  enumerated  above.  Sec- 
tion 20  also  provides  that  the  application  for  a  permit  by 
municipalities  for  the  use  of  water  "for  domestic  purposes 
shall  be  considered  first  in  right,  irrespective  of  whether  they 
are  first  in  time." 

Section  23  of  the  1913  act  was  also  amended  at  the  1917 
session.  Before  amendment  section  23  provided  for  an  appli- 
cation fee  of  $2.50  per  theoretical  horsepower  up  to  100  horse- 
power, of  $500  from  100  to  10,000  horsepower,  and  of  $1000 
above  10,000  horsepower,  and  of  $10  for  purposes  other  than 
power.  It  also  provided  for  an  annual  charge,  after  the  issue 
of  license,  of  25  cents  for  each  theoretical  horsepower,  and  of 
ten  cents  per  miner's  inch  for  other  purposes.  The  section  as 
amended  provides  for  a  filing  fee  of  $5  and,  upon  the  issue  of 
a  permit,  the  additional  fee  of  10  cents  per  theoretical  horse- 
power up  to  100  horsepower,  of  5  cents  per  horsepower  from 
100  horsepower  to  1000  horsepower,  and  of  one  cent  per  horse- 
power above  1000  horsepower;  also,  if  for  agricultural  pur- 
poses, of  5  cents  per  acre  up  to  100  acres,  of  3  cents  per  acre 
from  100  to  1000  acres,  and  of  two  cents  per  acre  above  1000 
acres.  The  annual  charge  has  been  eliminated.  The  applica- 


72  ELEMENTS     OF     WESTERN     WATER     LAW 

tion  and  permit  fees  are  similar  to  those  in  force  in  Nevada, 
Oregon  and  Washington  (1917) — the  permit  fees  for  power 
purposes  being  the  same  as  those  in  Washington,  and  the 
permit  fees  for  agricultural  purposes  being  the  same  as  those 
in  Nevada. 

The  California  water  commission  made  the  above  recom- 
mendation regarding  change  in  filing  fees  as  applications  for 
power  purposes  were  discriminated  against  under  the  existing 
system.  Applicants  for  purposes  other  than  power  had  to  pay 
a  filing  fee  of  $10  only — regardless  of  the  size  of  the  proposed 
project.  Irrigation,  municipal  and  similar  applications  mean 
a  proposed  complete  depletion  (excepting  "return  waters")  of 
available  water  supply  by  the  amount  to  be  diverted.  Power 
applications  on  the  contrary  contemplate  a  return  of  the 
diverted  water  for  further  use  below.  Section  23,  as  amended, 
places  the  filing  fees  for  irrigation  and  power  purposes  on 
somewhat  the  same  basis. 

The  annual  charge  has  been  eliminated  under  licenses  for 
the  diversion  of  water  for  any  purpose  as  no  sound  argument 
could  be  found  for  its  retention.  It  was  probably  originally 
based  on  the  idea  that  the  state  owned  the  water  and,  there- 
fore, should  secure  a  return  on  its  use.  In  approving  a  permit 
or  issuing  a  license,  however,  the  state  gives  no  guarantee  of 
the  water  right,  and  the  holder  thereof  must  protect  himself 
if  litigation  be  initiated  by  riparian  owners  or  prior  appropria- 
tors.  The  Supreme  Court  of  California  in  Palmer  v.  Railroad 
Commission  (167  Cal.  163,  167)  expressed  itself  as  follows  on 
this  point: 

The  theory  that  the  water  of  a  non.navigable  stream  in  this  state 
is  in  some  sense  "public  water"  has  been  advanced  before.  It  has  been 
claimed  that  a  diversion  of  water  under  the  provisions  of  the  Civil 
Code  (sees.  1410  to  1422)  constitutes  a  grant  of  the  water  by  the  state 
to  the  appropriator.  The  idea  may  have  arisen  from  the  statement 
sometimes  made  in  the  decisions  that  the  riparian  owner  has  no  right 
in  the  corpus  of  the  water  (Eddy  v.  Simpson,  3  Cal.  252,  58  Am.  Dec. 
408),  and  that  running  water  cannot  be  made  the  subject  of  private 
ownership,  that  the  right  to  use  the  water  of  a  stream  "carries  no  spe- 
cific property  in  the  water  itself."  (Kidd  v.  Laird,  15  Cal.  179  [76 
Am.  Dec.  472]).  This  is  far  from  saying  that  the  property  in  the  water 
is  vested  in  the  public,  either  for  general  use,  or  as  property  of  the 
state.  The  doctrine  that  it  is  public  water,  or  that  it  belongs  to  the 
state  because  it  is  not  capable  of  private  ownership,  has  no  support  in 
the  statutes  of  the  state  or  in  any  decision  of  this  court. 

In  a  petition  for  rehearing  the  attention  of  the  Court  was 
directed  to  the  1911  amendment  of  Section  1410  of  the  civil 
code,  adding  the  words :  "All  water  or  the  use  of  water  within 


WATER     RIGHT     LEGISLATION  73 

the  state  of  California  is  the  property    of  the    people  of  the 
state  of  California."     The  Court's  interpretation  follows : 

The  amendment  may  possibly  be  effective  as  a  dedication  to 
general  public  use  of  any  riparian  rights  which  the  state,  at  the  time 
it  was  enacted,  may  still  have  retained  by  virtue  of  its  ownership  of 
lands  bordering  on  a  stream,  rights  in  the  stream  which  it  would  in 
such  cases  have  in  common  with  owners  of  other  abutting  land.  It 
could  not  affect  the  riparian  rights  of  the  other  owners,  nor  the  rights 
of  any  person  or  corporation  claiming  under  them,  nor  rights  previ- 
ously acquired  from  riparian  owners  by  prescription,  nor  rights  ac- 
quired from  the  state  prior  to  that  time  by  appropriation  under  the 
code,  in  reliance  upon  the  implied  offer  of  the  state  to  allow  its  riparian 
rights  to  be  acquired  in  that  manner,  as  indicated  in  the  opinion. 

No  western  state,  other  than  California  and  Oregon,  has 
attempted  to  levy  an  annual  charge  for  the  appropriation  of 
water.  The  Oregon  statute  (1911)  applies  to  all  water  power 
plants  and  not  only  to  new  ones  as  first  provided  in  1909. 

Adjudication  of  Rights. — The  procedure  for  the  adjudica- 
tion of  rights  provided  in  the  1913  act  was  unsatisfactory  and 
was  amended  in  1917  to  conform  to  the  new  Oregon  and 
Nevada  procedure — except  that  the  adjudication  is  specifically 
restricted  to  rights  by  appropriation. 

Distribution  of  Water. — The  only  provision  in  the  act 
regarding  the  distribution  of  water  is  Section  37,  which  is  as 
follows  : 

The  power  to  supervise  the  distribution  of  water  in  accordance 
with  the  priorities  established  under  this  act,  when  such  supervision 
does  not  contravene  the  authority  vested  in  the  judiciary  of  the  state, 
is  hereby  vested  in  the  state  water  commission. 

In  1917  an  act  was  introduced  amending  Section  37  so 
that  the  system  of  distribution  used  in  Colorado  and  other 
western  states  might  be  followed.  The  act  provided  that  the 
water  masters  should  be  paid  by  the  state,  as  this  recommen- 
dation had  been  made  by  practically  every  state  engineer  in 
response  to  inquiries  from  the  California  water  commission. 
The  matter  of  distribution  was  so  little  understood  by  the 
California  legislators,  however,  that  the  act  was  not  pressed. 
Many  of  the  opponents  of  the  measure  thought  it  was  an 
attempt  to  distribute  water  without  first  securing  an  adjudica- 
tion of  the  rights.  This  is  probably  the  only  instance  where 
there  has  been  objection  to  that  part  of  suggested  water  codes 
governing  distribution  of  water. 


74  ELEMENTS     OF     WESTERN     WATER     LAW 

Texas 

In  1913,  Texas  passed  legislation  creating  a  board  of 
water  engineers  consisting  of  three  members,  one  from  each  of 
the  three  water  divisions  into  which  the  act  divided  the  state. 
Under  this  act  the  board  was  authorized  to  pass  upon  applica- 
tions to  appropriate  in  the  same  general  way  as  is  a  state  engi- 
neer in  other  western  states.  In  1917,  the  1913  act  was  re- 
enacted  and  supplemented  to  include  the  Wyoming  adminis- 
trative method  for  determining  rights,  and  the  usual  system  of 
water  masters  to  distribute  water  in  accordance  with  decreed 
rights. 

As  stated  in  Chapter  II,  the  riparian  doctrine  is  recog- 
nized in  Texas.  Section  3  of  the  1917  act  authorizing  the 
diversion  of  water  contains  the  proviso:  "that  such  ordinary 
flow  and  underflow  shall  not  be  diverted  to  the  prejudice  of 
the  rights  of  any  riparian  owner  without  his  consent,  except 
after  condemnation  thereof  in  the  manner  hereinafter  pro- 
vided." Section  83  of  the  act  provides  that  a  permittee  who 
applies  the  water  appropriated  to  beneficial  purposes  for 
three  years  "shall  be  deemed  to  have  acquired  such  appropria- 
tion by  limitation,  as  against  any  and  all  other  claimants  of 
water  from  the  same  stream  *  *  *,  and  as  against  all  riparian 
owners."  The  benefits  of  the  section  also  extend  to  those  who 
appropriated  water  according  to  law  prior  to  the  passage  of 
the  1917  act. 

Section  129,  providing  for  the  forfeiture  of  water  rights 
of  those  who  fail  for  a  three-year  period  to  submit  evidence 
of  claim,  contains  the  following : 

Provided  that  nothing  herein  contained  shall  be  held  to  in  any 
way  destroy,  infringe  or  impair  the  right  of  any  riparian  owner  to  the 
use  of  the  water  from  such  stream  for  domestic  purposes  and  use  or 
for  the  use  of  stock,  and  it  shall  not  be  necessary  for  the  claimant  of 
this  right  to  appear  or  assert  his  right  to  such  use,  but  the  same  shall 
be  respected. 

Section  136  is  as  follows : 

Nothing  in  this  act  shall  be  construed  as  a  recognition  of  any 
riparian  right  in  the  owner  of  any  lands  the  title  to  which  shall  have 
passed  out  of  the  state  of  Texas  subsequent  to  the  first  day  of  July, 
A.  D.  1895. 

The  date,  July  1,  1895,  is  the  effective  date  of  a  statute 
declaring  the  unappropriated  waters,  within  those  portions  of 
Texas  in  which  "irrigation  is  beneficial  for  agricultural  pur- 
poses," to  be  the  property  of  the  public  (see  references  to 
Crawford  v.  Hathaway  and  Hough  v.  Porter  in  Chapter  II). 


WATER     RIGHT     LEGISLATION  75 

Washington 

As  previously  stated,  the  "Bien  Code"  was  prepared  as  a 
result  of  a  joint  conference  between  commissions  appointed  in 
Oregon  and  Washington  in  1903-1904  to  draft  a  water  code. 
The  act  introduced  in  1905  as  a  result  of  the  commission's 
work  failed  to  pass.  Another  commission  was  appointed  to 
draft  a  bill  for  introduction  in  1913.  The  bill  failed  in  1913  and 
again  in  1915,  but  in  amended  form  passed  at  the  last  session, 
1917. 

The  new  act  provides  a  "state  hydraulic  engineer"  with 
authority  regarding  the  initiation  of  rights  and  the  distribution 
of  water  similar  to  that  of  other  western  state  engineers — 
especially  Nevada  and  Utah,  as  water  masters  report  directly 
to  the  state  hydraulic  engineer.  The  method  of  adjudication 
is  also  similar  to  that  of  Utah— one  point  of  difference  being 
that  in  Washington  the  act  provides  that  the  state  hydraulic 
engineer,  "or  his  duly  authorized  deputy,"  shall  be  the  referee 
appointed  by  the  court. 

The  act  recommended  by  the  commission  placed  limita- 
tions upon  the  exercise  of  riparian  rights  as  in  the  Oregon 
code.  The  limitations,  however,  were  stricken  out  by  the  leg- 
islature, so  that  the  only  mention  of  riparian  rights  in  the  act 
as  adopted  is  the  following  from  Section  1 : 

*  *  Nothing  contained  in  this  act  shall  be  construed  to  lessen,  enlarge 
or  modify  the  existing  rights  of  any  riparian  owner,  or  any  existing 
right  acquired  by  appropriation,  or  otherwise.  They  shall,  however, 
be  subject  to  condemnation  as  provided  in  section  4  hereof,  and  the 
amount  and  priority  thereof  may  be  determined  by  the  procedure  set 
out  in  sections  14  to  26  inclusive  hereof. 

Kansas 

In  1917,  the  Kansas  Water  Commission  was  created  to 
investigate  "the  problems  of  flood  prevention,  drainage, 
domestic  water  supply,  water  power,  navigation  and  irrigation 
in  the  state  of  Kansas."  The  commission  is  composed  of  three 
members — the  governor,  as  ex-officio  chairman,  and  two  civil 
engineers  appointed  by  him  to  hold  office  for  four  years.  The 
appointed  members  serve  without  compensation,  except  actual 
traveling  expenses. 

Section  6  of  the  act  creating  the  commission  provides  that 
surface  or  underground  waters  of  the  state  may  be  appropri- 
ated "upon  application  to  the  commission,  and  in  accordance 
with  rules  and  regulations  it  may  prescribe."  Section  7  pro- 
vides that  "the  commission  shall  study  the  laws  of  the  state 
relating  to  floods,  drainage  and  irrigation  with  a  view  of 


76  ELEMENTS     OF     WESTERN     WATER     LAW 

making  such  provisions  as  may  be  necessary  to  accomplish  the 
ends  prescribed  in  this  act." 

Kansas  has  therefore  passed  from  the  "posting  notice" 
stage  to  that  of  making  applications  to  a  water  commission. 
As  the  powers  given  to  the  commission  are  very  broad  regard- 
ing new  appropriations,  it  is  probable  that  the  commission's 
recommendation  for  a  well-rounded  irrigation  code  will  be 
accepted  by  the  next  legislature. 

Review  of  Legislation 

Adjudication  of  Rights. — In  May,  1904,  the  state  engi- 
neers of  the  eight  states  then  having  the  office  formed  the 
Association  of  State  Engineers.  The  first  regular  meeting 
was  held  at  Boise,  Idaho,  in  September,  1904.  As  a  result  of 
a  close  examination  of  the  provisions  of  the  various  statutes, 
it  was  then  agreed  that  the  only  difference  of  importance  was 
in  the  method  of  determining  rights,  and  the  same  view  is 
held  today. 

In  Wyoming,  Nebraska,  Nevada  (until  1915),  and  Texas, 
rights  are  determined  by  a  state  engineer  or  engineering  board, 
subject  to  review  by  the  courts  on  appeal.  The  method  has 
the  advantage  of  freedom  from  embarrassing  procedure  as 
the  officials  collect  the  necessary  field  data  and  proofs,  and  are 
so  familiar  with  the  essentials  that  the  irrelevant  is  summarily 
eliminated.  The  rights  are  accordingly  determined  with  com- 
parative speed  and  at  low  cost. 

In  Colorado,  Idaho,  Utah,  North  Dakota,  Oklahoma, 
South  Dakota,  New  Mexico  and  Washington,  adjudications 
are  made  by  the  courts  after  the  assembling  of  physical  data 
by  the  state  engineer^except  in  Colorado  where- the  state 
engineer  has  no  connection  with  the  adjudication.  The  chief 
argument  of  the  proponents  of  this  legislation  is  that  no  other 
method  is  legally  sound.  It  so  happens,  however,  that  the 
board  or  administrative  method  has  been  upheld  by  the 
supreme  courts  of  Wyoming  and  Nebraska,  and  the  court 
method  has  been  held  unconstitutional  in  Idaho  and  South 
Dakota — the  only  cases  in  which  it  has  been  before  the  courts 
(again  excepting  Colorado). 

The  constitutionality  of  the  Wyoming  statute  providing 
for  the  new  system  of  defining  rights  was  questioned  in  Farm 
Investment  Company  v.  Carpenter  (61  Pac.  266)  decided  May 
26,  1900  —  after  the  statute  had  been  in  operation  ten  years. 
The  Supreme  Court  in  upholding  the  statute  made  the  follow- 
ing pertinent  statement  regarding  the  efficiency  of  the  two 
methods: 


WATER     RIGHT     LEGISLATION  77 

As  between  an  investigation  in  the  courts  and  by  the  board,  it 
would  seem  that  an  administrative  board,  with  experience  and  peculiar 
knowledge  along  this  particular  line,  can,  in  the  first  instance,  solve 
the  questions  involved,  with  due  regard  for  private  and  public  inter- 
ests, conduct  the  requisite  investigation,  and  make  the  ascertainment 
of  individual  rights,  with  great  facility,  at  less  expense  to  interested 
parties,  and  with  a  larger  degree  of  satisfaction  to  all  concerned. 

In  the  same  case  it  was  contended  that  although  the  sys- 
tem might  be  valid  for  denning  rights  which  had  accrued  sub- 
sequent to  the  adoption  of  the  constitution,  it  was  certainly 
invalid  for  denning  rights  accruing  prior  thereto  and  the 
Court  answered : 

It  follows  from  what  has  already  been  said  that  in  this  regard 
there  exists  no  difference  between  claimants  whose  rights  accrued 
prior  to,  and  those  acquiring  rights  after,  the  adoption  of  the  constitu- 
tion and  the  statute  in  question. 

In  Crawford  v.  Hathaway  (93  N.  W.  781)  the  validity  of 
the  Nebraska  statute  was  attacked  and  the  Supreme  Court 
said: 

The  Wyoming  statute,  from  which  ours  is  borrowed,  has  been 
subjected  to  judicial  construction  and  is  upheld  by  the  Supreme  Court 
of  that  state  on  the  express  ground  that  the  powers  authorized  therein 
are  not  judicial,  but  administrative.  .  .  .  With  this  authoritative 
construction  of  the  statute,  and  a  decision  of  the  very  question  raised 
in  the  case  at  bar  upon  reasoning  quite  convincing  and  satisfactory, 
it  would  seem  that  the  question  should  be  regarded  as  at  rest.  The 
primary  object  of  the  board  is  for  the  purpose  of  supervising  the  appro- 
priation, distribution  and  diversion  of  water.  This  is  obviously  an 
administrative  rather  than  a  judicial  function. 

In  Bear  Lake  v.  Budge  (75  Pac.  614)  the  Idaho  Supreme 
Court  held  invalid  that  part  of  the  1903  statute  providing  for 
the  initiation  by  a  water  commissioner  of  suits  to  determine 
water  rights,  in  the  following  words : 

Said  provision  also  violates  the  provision  of  our  statutes  which 
requires  suits  to  be  brought  in  the  name  of  the  real  party  in  interest. 
The  water  commissioner,  a  public  official,  is  not  the  real  party  in  inter- 
est in  a  suit  to  quiet  title  or  to  determine  adverse  interest  in  property 
not  claimed  by  or  belonging  to  him  or  the  state. 

In  St.  Germain  Irrigating  Co.  v.  Hawthorne  Ditch  Co. 
(143  N.  W.  124),  the  Supreme  Court  of  South  Dakota  consid- 
ered that  part  of  the  "water  code"  dealing  with  the  adjudica- 
tion of  water  rights.  The  code  provides  that  "when  any  such 
suit  has  been  filed  the  court  shall  direct  the  state  engineer  to 
make  or  furnish  a  complete  hydrographic  survey  of  such 
stream  system"  and  that  the  costs  of  such  surveys  shall  be 
charged  against  the  parties  in  proportion  to  the  water  right 
allotted.  The  court  held  that  such  provisions  are  "void  as 


78  ELEMENTS     OF    WESTERN     WATER     LAW 

tending  to  deprive  individuals  of  property  rights  and  property, 
by  way  of  costs  and  expenses,  without  due  process  of  law." 
The  section  in  question  is  practically  the  same  as  Sec.  4620 
of  the  Code  of  Civil  Procedure  of  Idaho,  which  has  been  up- 
held on  the  grounds  that  the  constitution  does  not  prohibit 
the  legislature  from  providing  for  such  surveys  and  their  use 
as  evidence  and  the  prorating  of  the  costs  thereof  by  the  trial 
court.  (Boise,  etc.  Co.  v.  Stewart,  77  Pac.  25). 

The  new  Oregon  method  (now  followed  in  Oregon, 
Nevada  and  California)  is  designed  to  meet  the  objections  of 
those  who  contend  that  only  a  regular  judicial  tribunal  should 
establish  water  rights.  As  stated  above,  the  1907  Oregon  stat- 
ute provides  for  an  immediate  affirmance  or  modification  of 
the  determination  of  the  board  by  the  circuit  court.  The  pro- 
visions of  the  Oregon  act  regarding  this  method  of  determin- 
ation have  been  upheld  by  the  Oregon  Supreme  Court  in 
Pacific  Livestock  Company  v.  Cochran  (144  Pac.  668)  and 
In  Re  Willow  Creek  (144  Pac.  505),  and  have  likewise  been 
upheld  by  the  U.  S.  Supreme  Court  in  Pacific  Livestock  Co.  v. 
Lewis  (36  Sup.  Ct.  Rep.,  637).  In  the  last  case  the  Court 
said,  in  commenting  upon  the  relation  between  the  proceed- 
ings before  the  board  and  before  the  court : 

A  serious  fault  in  this  contention  is  that  it  does  not  recognize  the 
true  relation  of  the  proceeding  before  the  board  to  that  before  the 
court.  They  are  not  independent  or  unrelated,  but  parts  of  a  single 
statutory  proceeding,  the  earlier  stages  of  which  are  before  the  board 
and  the  later  stages  before  the  court.  In  notifying  claimants,  taking 
statements  of  claim,  receiving  evidence,  and  making  an  advisory 
report,  the  board  merely  paves  the  way  for  an  adjudication  by  the 
court  of  all  the  rights  involved.  /A~s  the  supreme  court  of  the  state 
has  said,  the  board's  duties  are  isuch  like  those  of  a  referee.  (And 
see  Washington  ex  rel.  Oregon  R.  &  Nav.  Co.  v.  FalrdSil5f^24  U.  S. 
510,  526,  527,  56  L.  ed.  863,  868,  869,  32  Sup.  Ct.  Rep.  535.)  All  the 
evidence  laid  before  it  goes  before  the  court,  where  it  is  to  be  accorded 
its  proper  weight  and  value.  That  the  state,  consistently  with  due 
process  of  law,  may  thus  commit  the  preliminary  proceedings  to  the 
board  and  the  final  hearing  and  adjudication  to  the  court,  is  not  debat- 
able. And  so,  the  fact  that  the  board  acts  administratively  and  that 
its  report  is  not  conclusive  does  not  prevent  a  claimant  from  receiv- 
ing the  full  benefit  of  submitting  his  claim  and  supporting  proof  to  the 
board.  That  he  is  to  do  this  at  his  own  expense  affords  no  ground  for 
objection;  on  the  contrary,  it  is  in  accord  with  the  practice  in  all 
administrative  and  judicial  proceedings. 

In  the  recent  case  of  Bergman  v.  Kearney  (24  Fed.  884) 
the  validity  of  the  1915  Nevada  act  was  attacked  on  the 
ground,  among  others,  that  certain  sections  of  the  statute  "are 
invalid,  because  thereby  they  seek  to  confer  upon  a  non- 


WATER     RIGHT     LEGISLATION  79 

judicial  officer  judicial  powers ;  and  by  the  terms  of  the  statute 
the  district  courts  of  the  state  are  deprived  of  their  original 
jurisdiction  *  *  *;  and  that  it  makes  of  the  district  courts 
appellate  courts  *  *  *."  In  reaching  his  conclusions  in  the 
case,  Judge  Farrington  presents  a  careful  analysis  of  constitu- 
tional and  statutory  provisions  regarding  water  in  Wyoming, 
Nebraska,  Oregon  and  Nevada,  and  says: 

Under  our  law,  with  even  more  reason  than  under  that  of  Oregon, 
Wyoming  or  Nebraska,  may  it  be  said  that  the  proceeding  for  the 
adjudication  of  water  rights  is  integral;  it  is  one;  its  preparatory  and 
initial  stages  are  before  the  state  engineer;  the  final  steps  are 
in  the  district  court.  It  is  initiated  by  an  order  of  the  state  engineer, 
without  waiting  for  controversies  to  arise.  He  seeks  no  legal  or  equit- 
able relief,  either  for  himself  or  for  the  state  which  he  represents. 
No  recovery  of  the  whole  or  any  part  of  the  rights  to  be  investigated, 
is  demanded.  He  sets  up  no  title  to  be  established  or  quieted  in  him- 
self or  in  the  state;  he  alleges  no  rights  which  have  been  infringed  or 
violated.  The  purpose  of  the  proceeding  is  to  promote  the  public  wel- 
fare by  regulating  the  use  and  preventing  the  waste  of  the  waters  of 
the  state.  His  findings  and  determination,  though  they  are  obtained 
judicially,  have  none  of  the  elements  of  finality  and  conclusiveness 
which  are  the  sine  qua  non  of  judicial  power.  As  an  ascertainment  of 
relative  rights,  it  is  not  effective  for  the  administrative  purpose  of 
regulating  and  controlling  distribution  and  diversion,  until  it  is  filed 
in  court.  *  *  *  Untiljt  is  so  fil^d^Jt^a^no_more_^orce  than  the 
findings  of  a  referee.  It  is  not  a  decree  or  judgment  in  the  sense  that 
it  terminates  the  litigation  on  the  merits  between  parties;  therefore, 
there  is  nothing  to  appeal  from.  When  it  reaches  the  court,  there  is 
no  necessity  for  an  appeal;  there  its  principal  function  is  to  serve  as 
one  of  the  pleadings.  *  *  * 

I  am  therefore  of  the  opinion  that  the  act  of  1913,  as  amended  in 
1915,  in  so  far  as  it  authorizes  the  state  engineer  to  take  evidence  and 
determine  water  rights  for  administrative  purposes,  is  not  unconstitu- 
tional. The  power  exercised  in  the  ascertainment  of  water  rights  for 
administrative  purposes  only,  is  not  judicial  power  in  the  constitutional 
sense ;  nor  in  so  far  as  the  engineer  is  authorized  to  take  evidence  and 
determine  water  rights  for  the  final  adjudication  of  the  titles  of  various 
claimants  among  themselves,  is  he  vested  with  judicial  power.  What 
he  does  is  merely  preliminary,  the  initial  step  in  a  proceeding  which 
culminates  in  a  final  decree  by  the  district  court;  thus  it  is  not  the 
engineer,  but  the  court,  which  exercises  the  judicial  power  of  the 
state  of  Nevada. 

As  viewed  from  the  practical  standpoint,  the  argument  is 
entirely  in  favor  of  the  administrative  board  method  (includ- 
ing the  Oregon  method).  ^Excepting  Colorado,  where  the 
system  is  clearly  defective  in  that  it  does  not  provide  for 
representation  by  the  state,  practically  nothing  has  been  done 
in  the  states  adopting  statutes  providing  for  the  adjudication 


80  ELEMENTS     OF     WESTERN     WATER     LAW 

by  a  regular  court,  after  the  preparation  of  physical  data  by 
the  state  engineer.  Very  decided  progress  has  been  made 
in  Nebraska,  Nevada,  Oregon  and  Wyoming,  where  the  rights 
are  determined  by  the  board  of  control  or  the  state  engineer, 
at  least  in  the  first  instance.  Realizing  the  excellent  work 
accomplished  in  the  states  last  named,  Idaho  and  Utah  in  1915 
appointed  commissions  to  recommend  new  legislation.  On 
account  of  lack  of  funds  no  commission  was  appointed  by  the 
governor  of  Utah  during  the  period  1915-1916.  In  1917,  how- 
ever, an  act  providing  for  such  a  commission  and  appropriating 
$18,000  for  the  expenses  thereof  was  passed,  and  the  commis- 
sion has  been  appointed  and  is  now  at  work. 

The  Idaho  commission  in  its  report  (1915)  says: 
The  Commission  therefore  proposes  a  plan  that,  while  it  is  in  a 
measure  revolutionary  so  far  as  the  state  of  Idaho  is  concerned,  vari- 
ous features  of  it  have  been  in  operation  in  Wyoming  and  Oregon  and, 
though  severely  criticised,  apparently  are  successful  there.  The  plan 
as  proposed  by  the  Commission  would  effect  a  change  whereby  the 
administration  and  adjudication  of  the  waters  of  the  state  would  be 
placed  in  the  hands  of  a  board  composed  of  the  state  engineer  and  two 
other  members  appointed  by  the  governor  from  different  irrigated  sec- 
tions of  the  state. 

Acquirement  of  Rights. — It  has  been  stated  that  the 
following  states  have  central  offices  (state  engineer,  water 
commission  or  water  board)  to  which  applications  on  fur- 
nished printed  forms  must  be  made  by  intending  appropria- 
tors:  Wyoming,  Nebraska,  Idaho,  Utah,  Nevada,  North 
Dakota,  Oklahoma,  South  Dakota,  New  Mexico,  Oregon, 
California,  Texas,  Kansas  and  Washington.  The  central 
office  of  each  of  the  above  states  will  send  an  application  blank 
and  instructions  on  request,  and  every  intending  appropriator 
should  follow  the  directions  carefully  and  thus  avoid  later 
trouble.  To  the  above  list  Colorado  should  be  added,  as  the 
state  engineer  issues  instructions  regarding  maps  and  state- 
ments to  be  filed  within  sixty  days  after  the  commencement 
of  surveys  or  actual  construction  of  any  ditch  or  reservoir. 

There  remain  but  two  states,  Arizona  and  Montana,  in 
which  the  old  method  of  posting  notices  is  still  valid.  In  Ari- 
zona, a  copy  of  the  notice  of  appropriation  must  be  recorded 
in  the  office  of  the  county  recorder  of  the  counties  in  which 
the  ditch  or  reservoir  lies,  and  also  in  the  office  of  the  secretary 
of  state.  No  time  limit  is  specified  for  the  recording  of  notices, 
and  the  work  must  begin  within  a  reasonable  time  and  be 
prosecuted  with  reasonable  diligence  to  completion.  In  Mon- 
tana, a  verified  copy  of  the  notice  of  appropriation  must  be 
filed  in  the  office  of  the  county  clerk  of  the  county  where 


WATER     RIGHT     LEGISLATION  81 

posted  within  twenty  days,  and  work  must  begin  within  forty 
days.  In  case  of  appropriation  from  adjudicated  streams,  the 
new  appropriator,  within  forty  days  after  completion,  makes 
application  to  the  clerk  of  the  district  court,  who  orders  an 
examination  by  a  competent  engineer.  A  hearing,  after  pub- 
lished notice,  is  held,  and  the  court  limits  the  appropriation  in 
accordance  with  its  findings.  This  procedure  was  adopted  in 
1907.  Montana  has  had  a  state  engineer  since  1903,  but  his 
duties  are  confined  mainly  to  operations  under  the  Carey  act 
and  to  state  highway  work.  It  is  gratifying  to  note  that  in 
both  Arizona  and  Montana  comprehensive  "water  codes"  were 
introduced  in  1917.  It  is  certain  that,  on  account  of  the  cam- 
paign of  education  now  being  waged  in  the  two  states,  the 
chances  of  passage  at  the  1919  session  are  very  good. 

Following  the  early  California  cases  and  prior  to  the 
introduction  of  the  new  legislation,  it  was  the  accepted  rule 
that  a  valid  appropriation  of  water  could  be  made  without 
fo1  lowing  the  statutes  providing  for  the  posting  of  notices  of 
appropriation.  Except  in  Idaho,  the  new  legislation  aims  to 
make  the  statutory  method  exclusive — the  diversion  of  water 
except  by  virtue  of  an  approved  application  being  generally 
declared  unlawful.  The  question  has  been  raised  before  the 
Supreme  Court  of  Idaho  only.  In  a  number  of  cases,  of  which 
the  last  is  Crane  Falls  Power  &  Irrigation  Co.  v.  Snake  River 
Irrigation  Co.  (133  Pac.  655),  the  Supreme  Court  of  Idaho  has 
held  that  the  old  rule  still  applies,  and  that  an  appropriation 
may  be  made  by  actual  diversion  without  applying  to  the  state 
engineer  for  a  permit.  By  following  the  statute  the  benefits 
of  the  doctrine  of  relation  are  secured,  and  the  priority  of  the 
right  is  fixed  as  of  the  date  of  the  filing  of  the  application. 
When  the  statute  is  not  followed,  the  priority  dates  from  the 
application  of  the  water  to  beneficial  use  —  the  statutory 
method  being  the  exclusive  method  by  which  the  right  can 
relate  back  to  the  filing  of  the  application.  As  a  practical 
matter,  therefore,  no  project  of  any  size  will  be  undertaken 
except  under  permit  from  the  state  engineer.  Not  only  would 
it  be  impossible  to  finance  a  project  with  no  evidence  of  water 
right,  but  no  rights  of  way  over  government  land  can  be 
secured  without  such.  As  the  constitution  of  Idaho  provides 
that  the  right  to  appropriate  shall  never  be  denied,  the  Idaho 
cases  cannot  be  considered  a  precedent  in  the  other  states 
having  the  new  legislation. 

Except  as  indicated  under  the  discussion  of  the  Utah  laws,  j 
the  new  legislation  authorizes  the  central  offices  to  reject  anj 
application  which  is  deemed  detrimental  to  the  public  welfare.  I 


82  ELEMENTS     OF     WESTERN     WATER     LAW 

As  previously  stated,  this  provision  was  held  unconstitutional 
by  a  district  court  in  Utah,  but  it  has  been  upheld  by  the 
Supreme  Courts  of  New  Mexico  and  Oregon  (Young  v.  Hin- 
derlider — New  Mexico — 110  Pac.  1050;  Cookinham  v.  Lewis — 
Oregon— 114  Pac.  90,  115  Pac.  343). 

The  new  legislation  generally  provides  that  the  central 
office  may  cancel  a  permit  under  which  work  is  not  being 
prosecuted  in  accordance  with  the  conditions  thereof.  A  very 
comprehensive  statute  covering  this  point  was  adopted  in 
Idaho  in  1909.  Its  validity  was  questioned  in  Speer  v.  Steph- 
enson  (102  Pac.  366)  on  the  ground  that  it  confers  judicial 
power  upon  the  state  engineer,  and  that  the  procedure  pre- 
scribed is  not  due  process  of  law.  The  Court  held  that  "the 
granting  as  well  as  the  cancellation  and  voiding  of  permits  are 
acts  of  administration  and  clearly  within  the  power  which  may 
be  given  to  the  state  engineer  in  supervising  and  administering 
a  law  regulating  the  appropriation  of  the  public  waters."  The 
sufficiency  of  the  procedure  was  also  upheld. 

The  rule  was  early  established  that  an  appropriator  may 
change  the  place  or  means  of  diversion,  the  place  of  use  and 
purpose  of  use,  without  loss  of  priority,  provided  no  other 
claimant  is  injured  thereby.  As  the  matter  of  injury  is  one 
of  fact  to  be  determined  in  a  given  case,  the  new  legislation 
in  a  number  of  the  states  provides  a  procedure  to  be  followed 
after  application  to  the  state  engineer  for  permission  to  make 
such  change.  In  Pueblo  of  Isleta  v.  Tondee  (137  Pac.  86)  the 
Supreme  Court  of  New  Mexico  held,  with  reference  to  the 
sections  of  the  1907  New  Mexico  statute  providing  for  such 
changes,  that  the  provision  applies  only  to  appropriations 
initiated  under  the  1907  act,  and  not  to  those  existing  at  the 
date  of  its  passage.  Mr.  Chief  Justice  Roberts  dissented,  hold- 
ing that  all  appropriations  are  subject  to  the  sections  con- 
strued, and  his  opinion  seems  to  be  supported  by  both  the 
administrative  practice  and  by  the  courts  in  other  states 
having  such  legislation. 

Water  rights  initiated  by  application  to  the  state  engineer 
are  based  upon  beneficial  use  and  perpetual  unless  abandoned 
or  forfeited  through  non-use — as  was  the  case  prior  to  the 
adoption  of  the  new  legislation.  Oregon  (1909)  and  California 
(1911)  formerly  restricted  new  appropriations  for  power  pur- 
poses to  a  term  of  forty  years,  but  such  statutes  are  no  longer 
effective,  having  been  repealed  in  Oregon  in  1915  and  in  Cali- 
fornia in  1913. 

Distribution  of  Water. — Every  western  state,  with  the 
exception  of  Arizona,  Kansas  and  Montana,  has  now  adopted 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  83 

a  system  of  distribution  of  water  in  accordance  with  deter- 
mined or  decreed  rights,  following  the  method  first  introduced 
by  Colorado — the  California  statute  on  this  point,  however, 
must  be  supplemented.  The  title,  incidental  duties,  method  of 
appointment  and  payment  of  the  "police  officers"  involved  in 
the  distribution  of  water  differ  in  the  various  states,  but  the 
underlying  principle  is  the  same.  The  general  method  of 
having  the  "police  officers"  paid  by  the  counties  has  been 
severely  criticized  by  the  central  offices,  but,  as  previously 
stated,  the  only  state  which  has  thus  far  authorized  the  pay- 
ment of  such  "police  officers"  from  state  funds  is  Nebraska. 
So  necessary,  and  in  fact  indispensable,  is  a  public  systSflftf 
distribution  after  rights  have  been  defined  or  decreed,  that 
many  judges  have  taken  it  upon  themselves  to  insist  upon  the 
appointment  of  commissioners  to  divide  the  waters  in  accord- 
ance with  decrees.  The  Supreme  Court  of  the  United  States, 
in  passing  upon  an  Arizona  case  in  which  the  lower  court  had 
ruled  that  the  parties  to  a  suit  should  share  the  payment  of 
the  salary  of  the  commissioner  appointed  by  the  court  to  dis- 
tribute the  water,  approved  such  action  "in  view  of  the  absence 
of  legislative  action  on  the  subject  and  of  the  necessity  which 
manifestly  existed  for  supervising  the  use  of  the  stream.  *  *  " 
(Montezuma  Canal  Co.  v.  Smithville  Canal  Co.,  218  U.  S.  371.) 
Conclusion. — It  should  be  emphasized  in  closing  that  the 
"new  legislation"  which  has  been  discussed  is  dictated  solely 
by  good  business  sense.  Instead  of  endless  litigation  regard- 
ing existing  rights  and  no  system  worth  considering  regulating 
new  appropriations,  the  new  plan  provides  a  full  determin- 
ation of  existing  rights  in  a  single  proceeding,  the  proper 
distribution  of  water  by  state  officials  according  to  such  deter- 
mination, and  a  complete  control  of  the  acquirement  of  new 
rights  by  a  central  office.  It  rests  upon  the  same  legal  basis 
as  the  old,  and  in  no  way  attempts  to  interfere  with  or  limit 
vested  rights.  It  is  applicable  to  any  condition  of  topography 
or  climate,  as  is  illustrated  by  its  acceptance  by  Nebraska  in 
the  east  and  Oregon  in  the  west,  by  North  Dakota  in  the  north 
and  Texas  in  the  south.  It  leads  the  way  from  chaos  and  strife 
to  order,  harmony,  and  efficiency. 


CHAPTER  VII 
WATER  RIGHTS  ON  INTERSTATE  STREAMS 

The  principles  of  either  the  doctrine  of  riparian  rights 
or  of  that  of  prior  appropriation  have  been  thus  far  consid,- 
ered  as  developed  within  the  various  western  states  and  no 
mention  has  been  made  of  the  right  to  use  the  waters  of  inter- 
state streams.  A  little  consideration  only  is  necessary  to  re- 
call to  one  the  great  number  of  rivers  which  either  flow  from 
state  to  state,  or  form  the  boundary  line  between  them.  The 
Snake  from  its  headwaters  in  the  mountain  lakes  of  Wyom- 
ing meanders  across  Idaho,  crosses  and  re-crosses  the  Idaho- 
Oregon  boundary  line,  flows  through  southeastern  Washing- 
ton and  finally  joins  the  Columbia,  which  is  the  boundary 
between  Washington  and  Oregon.  The  tributaries  of  the 
Missouri  rise  in  Wyoming  and  the  main  stream  flows  through 
or  touches  Montana,  North  Dakota,  South  Dakota,  Nebraska 
and  Kansas.  The  principal  tributaries  of  the  Colorado,  the 
Green  and  the  Grand,  rise  in  Wyoming,  and  after  their  con- 
fluence in  Utah  the  main  river  flows  into  Arizona  and  becomes 
the  boundary  between  Nevada  and  Arizona,  and  also  between 
California  and  Arizona.  The  Rio  Grande  rises  in  Colorado 
and  flows  through  New  Mexico  into  Texas. 

The  waters  of  all  of  the  great  rivers  mentioned  are  used 
to  some  extent  in  irrigation,  but  with  the  exception  of  the 
Rio  Grande,  and  possibly  the  lower  Colorado,  there  is  no 
likelihood  of  trouble  in  the  near  future  between  states  regard- 
ing their  use.  The  interstate  streams  which  have  been  in  con- 
troversy are  the  small  mountain  tributaries  whose  small  flow 
was  early  appropriated.  On  such  streams  it  is  very  common 
to  find  ditches  heading  in  the  upper  state  and  irrigating  lands 
in  both  the  upper  and  lower  states.  Willey  v.  Decker  (73  Pac. 
210)  dealt  with  Young's  Creek  flowing  from  Montana  into 
Wyoming  and  back  again  into  Montana,  and  the  Supreme 
Court  of  Wyoming  therein  held  (as  reported  in  a  head  note)  : 

84 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  85 

In  the  absence  of  statutory  provisions,  owners  of  land  in  Montana 
may  acquire  a  legal  right  by  prior  appropriation  to  the  use  of  the  waters 
of  a  stream  having  its  source  in  that  state,  and  flowing  thence  .  .  . 
in  Wyoming,  by  joining  with  owners  of  land  in  Wyoming  in  the  con- 
struction of  a  ditch,  and  thereby  diverting  the  waters  of  the  stream 
at  a  point  within  Wyoming  for  the  irrigation  of  lands  in  Montana  and 
Wyoming. 

Sage  Creek  is  another  small  stream  rising  in  Montana  and 
flowing  into  Wyoming.  In  Howell  v.  Johnson  (89  Fed.  556) 
the  defendants  contended  that  the  plaintiff,  having  a  water 
right  under  the  laws  of  Wyoming,  could  not  have  a  federal 
court  enforce  the  same,  and  also  that  the  rights  to  water 
were  under  the  control  of  the  legislature  of  Montana.  The 
court,  however,  applied  the  doctrine  of  appropriation  regard- 
less of  state  lines  and  held  for  the  plaintiff — diverting  in  the 
lower  state,  Wyoming.  The  lower  prior  diversion  was  like- 
wise protected  in  Hoge  v.  Eaton  (135  Fed.  411)  wherein  ap- 
propriators  from  Sand  Creek  in  Wyoming  complained  of  a 
later  diversion  of  the  creek  in  Colorado.  The  Court  therein 
said: 

The  right  to  divert  running  waters  for  irrigating  lands  in  an  arid 
country  is  not  controlled  or  affected  by  political  divisions.  It  is  the 
same  in  all  states  through  which  the  streams  so  diverted  may  pass. 

The  waters  of  Sage  Creek  were  again  in  controversy  in 
Bean  v.  Morris  which  was  decided  by  the  United  States  Su- 
preme Court  May  29,  1911  (221  U.  S.  485).  The  Supreme 
Court  therein  said: 

But  with  regard  to  such  rights  as  came  into  question  in  the  older 
states,  we  believe  that  it  always  was  assumed,  in  the  absence  of  legis- 
lation to  the  contrary,  that  the  states  were  willing  to  ignore  boun- 
daries, and  allowed  the  same  rights  to  be  acquired  from  outside  the 
state  that  could  be  acquired  from  within.  .  .  .  There  is  even 
stronger  reason  for  the  same  assumption  here.  Montana  cannot  be 
presumed  to  be  intent  on  suicide,  and  there  are  as  many  if  not  more 
cases  in  which  it  would  lose  as  there  are  in  which  it  would  gain,  if  it 
invoked  a  trial  of  strength  with  its  neighbors.  In  this  very  instance, 
as  has  been  said,  the  Big  Horn,  after  it  has  received  the  waters  of 
Sage  Creek,  flows  back  into  that  state.  But  this  is  the  least  consid- 
eration. The  doctrine  of  appropriation  has  prevailed  in  these  regions 
probably  from  the  first  moment  that  they  knew  of  any  law,  and  has 
continued  since  they  became  territory  of  the  United  States.  It  was 
recognized  by  the  statutes  of  the  United  States,  while  Montana  and 
Wyoming  were  such  territory,  .  .  .  and  is  recognized  by  both 
states  now.  Before  the  state  lines  were  drawn,  of  course,  the  principle 
prevailed  between  the  lands  that  were  destined  to  be  thus  artificially 
divided.  Indeed,  Morris  had  made  the  appropriation  before  either 
state  was  admitted  to  the  Union.  The  only  reasonable  presumption 
is  that  the  states,  upon  their  incorporation,  continued  the  system  that 


86  ELEMENTS     OF    WESTERN     WATER     LAW 

had   prevailed  theretofore,   and  made  no   changes   other  than   those 
necessarily  implied  or  expressed. 

The  cases  thus  far  referred  to  did  not  raise  the  doctrine 
of  riparian  rights,  although  it  has  not  been  definitely  abro- 
gated in  Montana.  The  conflict  of  doctrines  was  before  the 
United  States  Circuit  Court  in  Anderson  v.  Bassman  (140 
Fed.  10),  wherein  the  plaintiffs  were  farmers  using  the  waters 
of  the  West  Carson  River  in  Nevada  and  the  defendants  were 
irrigators  from  the  same  stream  in  California.  In  the  decision 
Judge  Morrow  points  out  that  the  doctrine  of  appropriation 
is  alone  recognized  in  Nevada,  while  California  uses  the  dual 
system  of  appropriation  and  riparian  rights.  On  account  of 
the  conflict  of  accepted  systems  no  attempt  was  made  to  ascer- 
tain individual  rights  of  priority,  but  the  case  was  decided  by 
allowing  the  farmers  in  California  the  use  of  the  entire  stream 
for  five  days  out  of  ten  and  a  like  use  to  those  in  Nevada. 

Kansas  v.  Colorado 

By  far  the  most  important  case  dealing  with  the  use  of 
the  waters  of  an  interstate  stream  is  Kansas  v.  Colorado  (206 
U.  S.  91)  decided  by  the  United  States  Supreme  Court  May 
13,  1907.  It  was  initiated  on  May  20,  1901,  by  Kansas  charg- 
ing Colorado  with  the  wrongful  diversion  of  the  waters  of  the 
Arkansas  River.  On  May  21,  1904,  the  United  States  inter- 
vened in  behalf  of  its  operations  under  the  Reclamation  Act 
of  June  17,  1902. 

Kansas  claimed  that  the  waters  of  the  Arkansas  should 
be  allowed  to  flow  as  they  were  accustomed  to  flow,  and  that 
by  the  diversions  in  Colorado  not  only  were  the  property  own- 
ers along  the  river  deprived  of  its  surface  flow,  but  all  land 
owners  within  the  drainage  area  were  deprived  of  the  bene- 
ficial influence  of  the  subterranean  flow. 

Colorado  contended  that  under  the  provisions  of  its  con- 
stitution it  is  the  owner  of  all  waters  within  its  borders.  It 
further  contended  that  the  Arkansas  River  is  substantially 
two  rivers — the  Colorado  Arkansas  rising  in  the  Rocky  Moun- 
tains and  sinking,  in  times  of  low  water,  in  the  sands  of 
Western  Kansas,  and  the  Kansas  Arkansas  which  is  formed 
by  springs  and  surface  drainage  in  Western  Kansas  east  of 
the  sink  of  the  Colorado  Arkansas. 

The  United  States  in  its  petition  in  intervention  set  forth 
the  vast  acreage  of  public  lands  to  be  reclaimed  under  the  pro- 
visions of  the  Reclamation  Act,  the  reliance  of  the  arid  west 
upon  the  doctrine  of  prior  appropriation,  the  inapplicability 
of  the  riparian  doctrine  where  irrigation  is  necessary,  the  con- 
tention of  Kansas  that  it  is  entitled  to  have  the  waters  of  the 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  87 

Arkansas  flow  uninterrupted  and  unimpeded  into  Kansas,  the 
contention  of  Colorado  that  it  is  the  owner  of  all  waters  with- 
in the  State,  and  closed  with  the  following: 

That  neither  the  contention  of  the  state  of  Colorado  nor  the 
contention  of  the  state  of  Kansas  is  correct;  nor  does  either  contention 
accord  with  the  doctrine  prevailing  in  the  arid  region  in  respect  to  the 
waters  of  natural  streams  and  of  flood  and  other  waters.  That  either 
contention,  if  sustained,  would  defeat  the  object,  intent,  and  purpose 
of  the  reclamation  act,  prevent  the  settlement  and  sale  of  the  arid 
lands  belonging  to  the  United  States,  and  especially  those  within  the 
watershed  of  the  Arkansas  River  west  of  the  ninety-ninth  degree  west 
longitude,  and  would  otherwise  work  great  damage  to  the  interests  of 
the  United  States. 

Mr.  Justice  Brewer,  who  wrote  the  opinion,  after  show- 
ing that  the  case  is  one  over  which  the  Supreme  Court  has 
jurisdiction,  said: 

Turning  now  to  the  controversy  as  here  presented,  it  is  whether 
Kansas  has  a  right  to  the  continuous  flow  of  the  waters  of  the  Arkansas 
River,  as  that  flow  existed  before  any  human  interference  therewith, 
or  Colorado  the  right  to  appropriate  the  waters  of  that  stream  so  as 
to  prevent  that  continuous  flow,  or  that  the  amount  of  the  flow  is 
subject  to  the  superior  authority  and  supervisory  control  of  the  United 
States.  ...  Is  the  question  one  solely  between  the  states  or  is 
the  matter  subject  to  national  legislative  regulation,  and,  if  the  latter, 
to  what  extent  has  that  regulation  been  carried?  .  .  .  The  primary 
question  is,  of  course,  of  national  control. 

The  power  of  congress  to  preserve  the  navigability  of 
streams  is  first  examined  with  the  conclusion : 

It  follows  from  this  that  if  in  the  present  case  the  national  gov- 
ernment was  asserting,  as  against  either  Kansas  or  Colorado,  that  the 
appropriation  for  the  purposes  of  irrigation  of  the  waters  of  the  Arkan- 
sas was  affecting  the  navigability  of  the  stream,  it  would  become  our 
duty  to  determine  the  truth  of  the  charge.  But  the  government  makes 
no  such  contention.  On  the  contrary,  it  distinctly  asserts  that  the 
Arkansas  River  is  not  now  and  never  was  practically  navigable  beyond 
Fort  Gibson  in  the  Indian  Territory,  and  nowhere  claims  that  any 
appropriation  of  the  waters  by  Kansas  or  Colorado  affects  its  nav- 
igability. 

The  Court  then  proceeds  to  examine  "the  question 
whether  the  reclamation  of  arid  lands  is  one  of  the  powers 
granted  to  the  general  government",  pays  particular  atten- 
tion to  that  part  of  section  three  of  article  four  of  the  consti- 
tution reading:  "The  congress  shall  have  power  to  dispose 
of  and  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United  States 
*  ...  .",  and  concludes  that  the  section  grants  to  con- 
gress no  legislative  control  over  the  states,  but  gives  it  author- 


88  ELEMENTS     OF     WESTERN     WATER     LAW 

ity  over  federal  property  within  their  limits.  It  is  stated 
that  the  constitution  is  silent  regarding  the  reclamation  of 
arid  lands  as  no  such  problem  existed  at  the  time  of  its  adop- 
tion, that  with  the  extension  of  national  territory  large  areas 
of  arid  lands  have  been  included,  and  that  "it  may  well  be 
that  no  power  is  adequate  for  their  reclamation  other  than  that 
of  the  national  government.  But  if  no  such  power  has  been 
granted,  none  can  be  exercised." 

It  is  the  last  sentence  quoted  which  has  led  many  to 
believe  that  the  Supreme  Court  in  this  case  declared  the  Rec- 
lamation Act  unconstitutional.  The  validity  of  that  Act, 
however,  was  not  in  issue,  but  the  question  of  national,  con- 
trol— that  is,  the  superior  right  of  congress  to  legislate  re- 
garding the  reclamation  of  arid  lands — was.  This  should  be 
clear  from  the  following  quotation  which  is  from  the  para- 
graph immediately  following  the  sentence  referred  to : 

It  does  not  follow  from  this  that  the  national  government  is 
entirely  powerless  in  respect  to  this  matter.  These  arid  lands  are 
largely  within  the  territories,  and  over  them  by  virtue  of  the  second 
paragraph  of  section  three  of  article  four  heretofore  quoted,  or  by 
virtue  of  the  power  vested  in  the  national  government  to  acquire 
territory  by  treaties,  congress  has  full  power  of  legislation,  subject 
to  no  restrictions  other  than  those  expressly  named  in  the  constitution, 
and,  therefore,  it  may  legislate  in  respect  to  all  arid  lands  within  their 
limits.  As  to  those  lands  within  the  limits  of  the  states,  at  least  of 
the  western  states,  the  national  government  is  the  most  considerable 
owner  and  has  power  to  dispose  of  and  make  all  needful  rules  and 
regulations  respecting  its  property.  We  do  not  mean  that  its  legisla- 
tion can  override  state  laws  in  respect  to  the  general  subject  of  recla- 
mation. While  arid  lands  are  to  be  found,  mainly  if  not  only  in  the 
western  and  newer  states,  yet  the  powers  of  the  national  government 
within  the  limits  of  those  states  are  the  same  (no  greater  and  no  less) 
than  those  within  the  limits  of  the  original  thirteen,  and  it  would  be 
strange  if,  in  the  absence  of  a  definite  grant  of  power,  the  national 
government  could  enter  the  territory  of  the  states  along  the  Atlantic 
and  legislate  in  respect  to  improving  by  irrigation  or  otherwise  the 
lands  within  their  borders.  Nor  do  we  understand  that  hitherto 
congress  has  acted  in  disregard  to  this  limitation. 

After  quoting  from  Gutierres  v.  Albuquerque  Land  Com- 
pany (188  U.  S.  545)  the  Court  continues: 

But  it  is  useless  to  pursue  the  inquiry  further  in  this  direction. 
It  is  enough  for  the  purposes  of  this  case  that  each  state  has  full 
jurisdiction  over  the  lands  within  its  borders,  including  the  beds  of 
streams  and  other  waters.  ...  It  may  determine  for  itself  whether 
the  common  law  rule  in  respect  to  riparian  rights  or  that  doctrine 
which  obtains  in  the  arid  regions  of  the  west  of  the  appropriation  of 
waters  for  the  purposes  of  irrigation  shall  control.  Congress  cannot 
enforce  either  rule  upon  any  state. 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  89 

It  is  certain  from  the  above  that  the  state  and  not  the 
nation  is  superior  regarding  legislation  concerning  the  use  of 
public  waters  not  navigable.  As  stated,  the  Supreme  Court 
believed  it  to  be  the  "primary  question"  involved  in  the  case 
and,  after  such  careful  and  direct  consideration,  the  decision 
must  be  accepted  as  final. 

Coming  to  the  direct  issue  between  the  two  states,  it  is 
held  that  the  dispute  must  be  so  adjusted  "upon  the  basis  of 
equality  of  rights  as  to  secure  as  far  as  possible  to  Colorado 
the  benefits  of  irrigation  without  depriving  Kansas  of  the 
like  beneficial  effects  of  a  flowing  stream".  Tables  are  set 
forth  in  the  opinion  showing  the  increase  in  population,  acre- 
age irrigated,  and  value  of  farm  products  in  the  counties  of 
eastern  Colorado  traversed  by  the  Arkansas  River.  The 
court  comments  on  the  marked  development  thus  evidenced 
and  says  that,  as  shown  by  the  testimony,  it  is  undoubtedly 
due  to  irrigation.  A  like  examination  is  made  of  the  census 
statistics  for  the  counties  of  western  Kansas  with  the  con- 
clusion that  the  use  of  the  water  in  Colorado  has  not  been  of 
serious  detriment  to  such  counties. 

The  substance  of  the  decision  is  well  presented  in  the 
following  paragraphs : 

Summing  up  our  conclusions,  we  are  of  the  opinion  that  the 
contention  of  Colorado  of  two  streams  cannot  be  sustained;  that  the 
appropriation  of  the  waters  of  the  Arkansas  by  Colorado,  for  purposes 
of  irrigation,  has  diminished  the  flow  of  water  into  the  state  of  Kan- 
sas; that  the  result  of  that  appropriation  has  been  the  reclamation 
of  large  areas  in  Colorado,  transforming  thousands  of  acres  into  fertile 
fields  and  rendering  possible  their  occupation  and  cultivation  when 
otherwise  they  would  have  continued  barren  and  unoccupied;  that 
while  the  influence  of  such  diminution  has  been  of  perceptible  injury 
to  portions  of  the  Arkansas  Valley  in  Kansas,  particularly  those  por- 
tions closest  to  the  Colorado  line,  yet  to  the  great  body  of  the  valley 
it  has  worked  little,  if  any,  detriment,  and  regarding  the  interests  of 
both  states  and  the  right  of  each  to  receive  benefit  through  irrigation 
and  in  any  other  manner  from  the  waters  of  this  stream,  we  are  not 
satisfied  that  Kansas  has  made  out  a  case  entitling  it  to  a  decree.  At 
the  same  time  it  is  obvious  that  if  the  depletion  of  the  waters  of  the 
river  by  Colorado  continues  to  increase  there  will  come  a  time  when 
Kansas  may  justly  say  that  there  is  no  longer  an  equitable  division  of 
benefits  and  may  rightfully  call  for  relief  against  the  action  of  Colo- 
rado, its  corporations  and  citizens  in  appropriating  the  waters  of  the 
Arkansas  for  irrigation  purposes. 

The  decree  which,  therefore,  will  be  entered  will  be  one  dismiss- 
ing the  petition  of  the  intervenor,  without  prejudice  to  the  rights  of 
the  United  States  to  take  such  action  as  it  shall  deem  necessary  to 
preserve  or  improve  the  navigability  of  the  Arkansas  River.  The 


90  ELEMENTS     OF     WESTERN     WATER     LAW 

decree  will  also  dismiss  the  bill  of  the  state  of  Kansas  as  against  all 
the  defendants,  without  prejudice  to  the  right  of  the  plaintiff  to  insti- 
tute new  proceedings  whenever  it  shall  appear  that  through  a  material 
increase  in  the  depletion  of  the  waters  of  the  Arkansas  by  Colorado, 
its  corporations  or  citizens,  the  substantial  interests  of  Kansas  are 
being  injured  to  the  extent  of  destroying  the  equitable  apportion- 
ment of  benefits  between  the  two  states  resulting  from  the  flow  of  the 
river. 

It  must  be  emphasized  that  the  Supreme  Court  in  its  de- 
cree did  not  attempt  to  make  an  equal  division  of  the  waters 
of  the  stream,  but  rather  an  equitable  apportionment  of  bene- 
fits. Neither  the  rule  of  prior  appropriation  nor  that  of  ripar- 
ian ownership  is  followed,  but  the  case  is  allowed  to  rest  on 
the  "cardinal  rule  of  equality  of  right" — not  to  the  means  but 
to  the  results. 

Legislation  Regarding  Interstate  Streams 
Interstate  complications  over  the  use  of  water  must  have 
been  very  much  in  the  legislative  mind  in  1911.  In  that  year 
California  enacted  legislation  making  it  unlawful  to  transport 
the  waters  of  any  lake  or  stream  of  the  state  "into  any  other 
state,  for  use  therein";  Colorado  authorized  a  joint  legislative 
committee  to  investigate  the  interference  by  the  federal  gov- 
ernment or  any  state,  corporation  or  individual  with  the 
control  by  Colorado  of  the  waters  within  its  borders;  and 
Wyoming  authorized  its  attorney  general,  under  the  direc- 
tion of  the  governor,  to  bring  such  actions  "as  he  may  deem 
expedient  to  maintain  the  rights  of  the  state  and  its  citizens 
in  the  waters  of  intersate  streams."  Oregon  was  the  only 
state  in  which  the  spirit  of  reciprocity  was  visible.  There,  by 
the  act  of  February  23,  1911,  it  was  provided  that  no  permit 
for  the  appropriation  of  water  shall  be  denied  because  the 
point  of  diversion,  or  any  portion  of  the  works,  or  the  place  of 
intended  use,  or  any  lands  to  be  irrigated  may  be  situated  in 
some  other  state;  "provided,  however,  that  the  state  engineer 
may  in  his  discretion,  decline  to  issue  a  permit  where  the 
point  of  diversion  described  in  the  application  is  within  the 
State  of  Oregon  but  the  place  of  beneficial  use  in  some  other 
state,  unless  under  the  laws  of  such  state  water  may  be  law- 
fully diverted  within  such  state  for  beneficial  use  in  the  State 
of  Oregon." 

The  constitutionality  of  the  1911  Colorado  statute  was 
questioned  in  Stockman  v.  Leddy  (129  Pac.  220)  which  was 
brought  to  compel  the  Auditor  of  Colorado,  Leddy,  to  issue  a 
warrant  for  services  rendered  the  legislative  committee  created 
by  the  statute.  The  constitution  of  Colorado  provides :  "The 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  91 

water  of  every  natural  stream,  not  heretofore  appropriated, 
within  the  State  of  Colorado,  is  hereby  declared  to  be  the  prop- 
erty of  the  public,  and  the  same  is  dedicated  to  the  use  of  the 
people  of  the  state,  subject  to  appropriation  as  hereinafter  pro- 
vided." Although  the  Supreme  Court  was  obliged  to  hold 
the  statute  invalid  as  it  conferred  "purely  executive  power 
upon  a  collection  of  members  of  the  legislative  department", 
it  said  that  the  general  purpose  of  the  act  "is  not  only  praise- 
worthy, but  strictly  within  the  legislative  field."  In  support 
of  the  last  statement  it  said : 

The  state  has  never  relinquished  its  right  of  ownership  and  claim 
to  the  waters  of  our  natural  streams,  though  it  has  granted  to  its 
citizens,  upon  prescribed  conditions,  the  right  to  the  use  of  such 
waters  for  beneficial  purposes  and  within  its  own  boundaries.  The 
property  right,  however,  in  the  natural  streams,  and  the  waters  flowing 
therein,  has  never  been  renounced  or  relinquished  by  the  state,  and  it 
has  at  all  times  asserted  not  only  its  right  of  ownership,  but  the  unre- 
strained right,  within  its  own  boundaries,  to  distribute  its  waters  to 
those  who  have,  under  its  authority,  acquired,  by*  perfected  appropria- 
tions, the  right  to  their  use.  *  *  * 

The  federal  government,  by  its  lawmaking  and  executive  bodies, 
knew  that  the  natural  streams  of  this  state  are,  in  fact,  nonnavigable 
within  its  territorial  limits,  and  practically  all  of  them  have  their 
sources  within  its  own  boundaries,  and  that  no  stream  of  any  impor- 
tance whose  source  is  without  those  boundaries,  flows  into  or  through 
this  state.  The  entire  volume  of  these  streams  is  therefore  made  up 
of  rains  and  snows  that  fall  upon  the  surface  of  lands  included  within 
the  exterior  lines  of  this  state  and  of  springs  which  issue  from  the 
earth  within  the  same  area.  Such  being  the  peculiar  conditions,  the 
state  was  justified  in  asserting  its  ownership  of  all  the  natural  streams 
within  its  boundaries. 

In  accordance  with  the  1911  act,  Wyoming  has  brought 
suit  in  the  United  States  Supreme  Court  against  Colorado 
and  two  individual  defendants  regarding  the  diversion  in  Col- 
orado of  waters  of  the  Laramie  River,  which  flows  from  Colo- 
rado into  Wyoming.  On  March  6,  1917,  the  Supreme  Court 
ordered  that  the  case  be  restored  to  the  docket  for  reargu- 
ment.  (State  of  Wyoming  v.  State  of  Colorado,  37  Sup.  Ct. 
Rep.  379.)  Wyoming  is  contending  for  the  application  of  the 
principle  of  prior  appropriation  regardless  of  state  lines,  while 
Colorado  insists  upon  being  allowed  to  use  all  of  the  waters 
within  its  boundaries  regardless  of  priority.  On  account  of 
the  great  interest  of  the  United  States  Reclamation  Service 
in  the  questions  presented,  the  Attorney  General  of  the 
United  States  will  undoubtedly  be  represented  in  the  re- 
argument.  The  case  differs  from  Kansas  v.  Colorado  in  that 


92  ELEMENTS     OF     WESTERN     WATER     LAW 

both  Wyoming  and  Colorado  have  abrogated  the  doctrine  of 
riparian  rights,  which  is  in  force  in  Kansas. 

Walbridge  v.  Robinson,  State  Engineer  (125  Pac.  812) 
was  brought  to  compel  the  state  engineer  of  Idaho  to  issue  a 
certificate  of  completion  of  diversion  works  from  Bear  Creek, 
an  Idaho  stream  (not  an  interstate  stream),  to  lands  in  Mon- 
tana. In  holding  that  the  state  engineer  was  not  authorized 
to  issue  the  certificate,  the  Court  said: 

There  is  no  doubt  in  our  minds  but  that  the  state  in  its  sovereign 
capacity  is  the  owner  of  the  waters  flowing  in  the  stream  thereof  and 
may  exercise  its  authority  over  the  same.  If  the  foregoing  proposi- 
tions be  correct,  the  state  has  the  right  to  prohibit  the  diversion  of 
the  waters  of  its  streams  for  use  outside  of  and  beyond  the  boundaries 
of  the  state. 

The  above  case  was  decided  July  3,  1912.  In  1915,  Idaho 
passed  a  statute,  similar  to  the  1911  Oregon  statute,  authoriz- 
ing the  state  engineer  to  issue  permits  for  the  diversion  of 
Idaho  waters  for  use  in  another  state,  provided  such  state  has 
legislation  "whereby  water  may  be  appropriated  within  such 
sister  state  for  use  within  the  state  of  Idaho."  Two  years 
previously,  in  1913,  Nevada  passed  a  statute  of  the  same  re- 
ciprocal import.  California,  in  1917,  repealed  its  prohibitory 
measure  of  1911,  and  added  a  new  section,  15a,  to  the  water 
commission  act,  as  follows: 

The  state  water  commission  shall  allow  the  appropriation  of 
water  in  this  state  for  beneficial  use  in  another  state  only  when,  under 
the  laws  of  the  latter,  water  may  be  lawfully  diverted  therein  for 
beneficial  use  in  the  state  of  California.  Upon  any  stream  flowing 
across  the  state  boundary  a  right  of  appropriation  having  the  point  of 
diversion  and  the  place  of  use  in  another  state  and  recognized  by  the 
laws  of  that  state,  shall  have  the  same  force  and  effect  as  if  the  point 
of  diversion  and  place  of  use  were  in  this  state;  provided,  that  the 
laws  of  that  state  give  like  force  and  effect  to  similar  rights  acquired 
in  this  state;  provided,  that  nothing  in  this  act  be  so  construed  as  to 
apply  to  interstate  lakes,  or  streams  flowing  in  or  out  of  such  lakes. 

That  Utah  may  be  counted  upon  to  join  Oregon,  Nevada, 
Idaho  and  California  in  the  near  future  is  evident  from  the 
following  extract  from  the  biennial  report  of  the  State  Engin- 
eer of  Utah  for  1913-1914  (Pg.  32),  and  the  added  fact  that  a 
water  commission  is  now  at  work  on  recommendations  for 
new  legislation : 

Under  the  existing  laws  the  state  engineer  cannot  consider  an 
application  on  an  interstate  stream  which  contemplates  the  appropria- 
tion of  water  within  this  state  to  be  used  beneficially  in  an  adjoining 
state.  There  are  several  interstate  streams  in  Utah,  and  in  most  of 
them  the  water  naturally  flows  into  an  adjoining  state.  Under  the 
present  law,  the  state  engineer,  by  having  to  refuse  to  accept  such 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  93 

applications,  may  at  times  block  a  really  meritorious  scheme  of  devel- 
opment. During  the  past  two  years  several  applications  of  this  nature 
have  been  submitted,  notably  on  Bear  River,  but,  on  advice  of  the 
attorney  general,  they  were  not  accepted,  for  the  reason  that  the 
present  law  gives  the  state  engineer  no  authority  over  such  applica- 
tions. I  think  that  this  matter  should  be  taken  up  with  the  adjoining 
states  with  a  view  of  securing  uniform  legislation  covering  this  class 
of  appropriations.  The  allowing  of  applications  of  this  nature  should, 
however,  rest  with  the  state  engineer.  He  should  have  authority  to 
investigate  the  scheme  proposed  by  such  an  application,  and  if  found 
to  be  meritorious  and  its  granting  will  in  no  way  be  detrimental  to 
the  state,  nor  deprive  the  state  of  a  water  supply  that  can  be  econom- 
ically and  beneficially  used  on  land  within  this  state,  the  application 
should  be  granted. 

Legislation  similar  to  that  of  Oregon,  Nevada,  Idaho  and 
California  should  be  enacted  by  all  the  states  where  rights  are 
initiated  by  an  application  to  the  state  engineer.  Cases  are 
constantly  arising  where  applications  are  made  for  proposed 
systems  lying  partly  within  two  states.  Without  definite  leg- 
islation the  state  engineer  has  no  guide  to  action — some  engi- 
neers have  approved  such  applications,  others  have  rejected 
them.  In  New  Mexico  the  territorial  engineer  approved  an 
application  for  the  irrigation  of  lands  in  New  Mexico  by  a 
ditch  heading  in  the  Animas  River  in  Colorado  about  six 
miles  above  the  interstate  line.  The  matter  reached  the 
courts  and  the  Supreme  Court  of  New  Mexico  decided  that 
"the  territorial  engineer  was  without  authority  to  approve 
the  application  in  question."  (Turley  v.  Furman,  114  Pac. 
278.) 

Not  only  is  legislation  necessary  in  regard  to  the  initia- 
tion of  rights  for  interstate  ditches  in  order  to  protect  the  one 
so  appropriating  water,  but  it  is  badly  needed  in  the  interest 
of  the  general  public  in  dividing  the  public  waters  among 
ditches  entitled  thereto.  At  present,  the  only  means  provided 
by  statute  for  distributing  the  waters  of  streams  is  the  author- 
ity given  the  water  commissioners,  or  water  masters,  to  close, 
or  partly  close,  headgates  so  that  the  later  and  upper  ditches 
cannot  take  the  waters  belonging  to  prior  appropriators.  As 
such  officers  cannot  act  beyond  the  borders  of  their  state,  they 
are  powerless  to  control  a  ditch  heading  above  their  state 
line.  The  state  engineer  of  Nebraska  reports  that  one  ditch 
diverting  water  from  the  North  Platte  in  Nebraska  near  the 
state  line  was  extended  so  that  it  headed  in  Wyoming  about 
two  hundred  feet  above  the  state  line.  It  thereupon  pro- 
ceeded to  take  all  the  water  desired  while  the  ditches  heading 
below  in  Nebraska  and  having  earlier  rights  had  their  supply 


94  ELEMENTS     OP     WESTERN     WATER     LAW 

regulated,  and  in  some  cases  entirely  cut  off,  by  the  state 
officials  in  charge. 

To  remedy  this  condition  the  state  engineer  of  Nebraska 
has  recommended  "that  every  canal  flowing  into  this  state 
have  a  controlling  gate  and  measuring  flume  just  within  the 
state  and  in  addition  thereto  a  return  canal  whereby  the  water 
sought  to  be  appropriated  may  flow  back  to  the  stream  from 
which  diverted."  Other  state  engineers  have  made  similar 
suggestions.  In  many  cases  the  construction  of  a  "return 
canal"  would  necessitate  heavy  expenditures  and  appear  pro- 
hibitive, but  the  situation  on  many  streams  is  sufficiently 
serious  to  warrant  drastic  action. 

In  1917,  Colorado  passed  a  statute,  similar  to  the  1911 
California  statute,  making  it  unlawful  to  divert  Colorado 
waters  to  another  state  for  use  therein.  The  1911  California 
statute  was  copied  from  a  statute  adopted  in  New  Jersey  in 
1905.  The  constitutionality  of  the  latter  was  upheld  by  the 
United  States  Supreme  Court  in  Hudson  Water  Company  v. 
McCarter  (209  U.  S.  349).  It  is  specifically  stated  in  the  opin- 
ion therein,  however,  that  "The  problems  of  irrigation  have 
no  place  here  .  .  .  .",  so  the  decision  will  not  necessarily 
control  in  attacks  upon  the  validity  of  such  statutes  in  the 
western  states.  In  further  support  of  their  validity  it  is  im- 
portant to  note  that  most  of  the  earlier  decisions  regarding 
rights  on  interstate  streams  lay  down  the  rule  of  prior  ap- 
propriation regardless  of  state  lines  in  the  absence  of  statutory 
provisions  to  the  contrary.  The  argument  against  such  pro- 
hibitive legislation  must  be  based  on  reasons  of  policy  rather 
than  those  of  law.  As  suggested  in  the  quotation  from  Bean 
v.  Morris  above,  each  state  stands  to  lose  just  as  much  as  it 
can  gain  by  such  statutes  —  although,  as  stated  above  in 
Stockman  v.  Leddy,  Colorado  believes  that  it  stands  to  lose 
only. 

Summary. — From  a  consideration  of  the  cases  dealing 
with  interstate  streams  (the  leading  ones  only  being  men- 
tioned above),  the  following  conclusions  are  justified.  The 
state  and  not  the  nation  is  superior  regarding  legislation  con- 
cerning the  use  of  public  waters,  excepting  only  the  matter 
of  navigation,  wherein  the  nation  controls.  Between  private 
appropriators  in  two  states  recognizing  only  the  doctrine  of 
prior  appropriation,  it  is  very  probable  that  that  doctrine  will 
be  applied  regardless  of  state  lines.  Between  private  appro- 
priators in  two  states,  one  or  both  of  which  recognize  the 
doctrine  of  riparian  rights,  the  priority  of  appropriations  will 
not  be  established,  but  the  waters  will  be  distributed  on  an 


WATER     RIGHTS     ON     INTERSTATE     STREAMS  95 

attempted  equitable  basis  suggested  by  the  particular  facts  of 
the  case.  In  a  controversy  between  two  states  in  their  sover- 
eign capacities  the  principle  established  in  Kansas  v.  Colorado 
will  undoubtedly  be  applied  and  the  Supreme  Court  will  decide 
in  accordance  with  what  the  facts  of  the  case  indicate  to  be 
an  equitable  apportionment  of  benefits.  Legislation  forbid- 
ding the  diversion  of  waters  from  within  a  state  to  another 
state  is  probably  legally  sound  but  is  based  upon  such  short- 
sighted policy  that  it  cannot  prevail. 


CHAPTER  VIII 

RIGHTS  OF  WAY  OVER  PUBLIC  LANDS  FOR 
DITCHES  AND  RESERVOIRS 

As  stated  in  the  first  chapter,  the  first  congressional  leg- 
islation regarding  rights  of  way  over  the  public  domain  was 
the  Act  of  1866,  now  Section  2339  of  the  Revised  Statutes  of 
the  United  States.  It  acknowledges  and  confirms  rights  of 
way  for  ditches  used  in  connection  with  "vested  and  accrued" 
water  rights  for  "mining,  agricultural,  manufacturing,  or 
other  purposes".  It  is  still  in  force  for  all  unreserved  public 
lands  for  purposes  other  than  the  generation  of  power. 

By  virtue  of  the  provisions  of  the  Act  of  1866,  one  may 
go  upon  the  public  domain,  dig  his  ditch,  divert  and  apply 
water  to  beneficial  use,  and  thus  secure  right  of  way  over  the 
land  occupied.  As  the  act  recognizes  only  rights  of  way  for 
ditches  used  in  connection  with  vested  water  rights,  it  has 
been  argued  that  no  right  of  way  attaches  until  the  comple- 
tion of  the  works  so  that  the  water  can  be  diverted.  The 
California  Court  of  Appeals  has  held  otherwise,  however,  in 
de  Wolfskill  v.  Smith  (5  Cal.  App.  175).  The  plaintiff  had 
posted  notices  of  water  appropriation  at  abandoned  oil  wells, 
on  unoccupied  public  land,  from  which  water  was  flowing. 
She  proceeded  with  her  ditch  construction  with  due  diligence 
until  enjoined  by  the  defendant  Smith,  who  had  made  home- 
stead entry  on  the  land  soon  after  the  notices  were  posted. 
Although  the  court  points  out  that  the  posting  of  a  notice 
"does  not  constitute  an  appropriation"  and  that  the  "right  to 
water  depends  upon  .  .  .  making  an  actual  appropria- 
tion of  its  use",  it  holds : 

By  posting  the  notice  appellant  (plaintiff)  from  that  time  became 
vested  with  the  right  to  the  use  of  the  stream  of  water  then  flowing 
from  these  wells,  together  with  the  right  to  construct  over  and  across 
the  land  the  necessary  ditches  to  divert  and  conduct  the  same  to  the 
place  of  intended  use. 

96 


RIGHTS     OF    WAY     OVER    PUBLIC     LANDS  97 

In  Lynch  v.  Lower  Yakima  Irrigation  Co.  (131  Pac. 
389),  the  Supreme  Court  of  Washington  has  held  that  Sec- 
tion 2339  gives  the  right  to  continued  possession,  even  though 
the  ditch  had  not  been  completed  when  the  land  to  be  oc- 
cupied by  the  ditch  was  entered.  It  is,  therefore,  in  accord 
with  the  deWolfskill  case. 

It  is  certain  that  as  against  the  government  the  water  right 
is  not  considered  vested  until  the  diversion  works  are  com- 
pleted and  ready  for  use.  Under  the  provisions  of  the  Recla- 
mation Act  the  public  lands  within  a  reservoir  site,  known  as 
Alkali  Lake,  in  Antelope  Valley,  California,  were  withdrawn 
from  entry.  The  Rickey  Land  and  Cattle  Company  owned  all 
the  private  land  within  the  site  and  also  irrigation  ditches 
running  from  the  West  Walker  River  to  the  site,  which  it  in- 
tended to  use  for  storage  purposes.  It  applied  for  right  of 
way.  over  the  public  land  within  the  reservoir  site  under  the 
Act  of  1891,  and,  after  the  rejection  of  its  application  by  the 
Secretary  of  the  Interior,  it  proceeded  with  the  construction 
of  a  tunnel  outlet,  claiming  that  its  rights  were  vested  under 
the  Act  of  1866.  The  government,  in  the  interest  of  the 
Reclamation  Service,  thereupon  instituted  suit  and  the  com- 
pany was  enjoined  from  prosecuting  the  construction  work. 
(U.  S.  v.  Rickey  Land  &  Cattle  Company,  164  Fed.  496.)  In 
this  case  it  was  impossible  to  use  the  reservoir  before  the 
completion  of  an  outlet  tunnel  and  channel  for  the  return  of 
the  stored  waters  to  the  West  Walker  River.  After  quoting 
Sections  2339  and  2340  of  the  Revised  Statutes,  the  Court 
says : 

It  is  very  clear  that  no  one  can  under  these  sections  acquire  as 
against  the  government,  a  vested  easement  in  and  to  public  lands,  for 
a  reservoir  site,  until  the  actual  completion  of  the  reservoir,  so  that 
the  waters  to  be  impounded  therein  may  be  applied  to  the  beneficial 
uses,  contemplated  by  the  irrigation  system  of  which  it  forms  a  part. 

This  was  the  construction  placed  upon  these  sections  by  the 
Supreme  Court,  in  Bear  Lake  Irrigation  Company  vs.  Garland,  164  U.S., 
pages  1,  18  and  19,  in  which  case  it  was  said: 

It  is  the  doing  of  the  work,  the  completion  of  the  well,  or  the 
digging  of  the  ditch,  within  a  reasonable  time  from  the  taking  of  pos- 
session, that  gives  the  right  to  use  the  water  in  the  well  or  the  right 
of  way  for  the  ditches  or  the  canal  upon  or  through  the  public  land. 
Until  the  completion  of  this  work,  or,  in  other  words,  until  the  per- 
formance of  the  condition  upon  which  the  right  to  forever  maintain 
possession  is  based,  the  person  taking  possession  has  no  title,  legal 
or  equitable,  as  against  the  government. 

Regardless,  therefore,  of  the  California  and  Washington 
cases,  no  one  planning  any  material  diversion  work  should 
rest  upon  the  Act  of  1866,  but  should  secure  his  right  of  way, 


98  ELEMENTS     OF    WESTERN    WATER    LAW 

or  permission  to  occupy  public  lands,  before  initiating  actual 
work. 

Act  of  March  3,  1891 :  The  Act  of  March  3,  1891,  grants 
rights  of  way  over  public  lands  and  reservations  for  irriga- 
tion ditches  and  reservoirs  upon  the  approval  of  applications 
by  the  Secretary  of  the  Interior.  Such  applications  must  be 
filed  with  the  registrar  of  the  land  district  in  which  the  ditch 
or  reservoir  is  to  be  located.  The  required  contents  of  papers 
and  maps  forming  the  application  are  specified  in  detail  in  the 
regulations  of  the  General  Land  Office,  and  the  applicant  must 
follow  the  directions  to  the  letter.  (Copies  of  the  regulations 
will  be  sent  on  request  -to  the  General  Land  Office,  Wash- 
ington, D.  C.)  The  right  of  way  granted  extends,  where 
necessary  for  construction  or  maintenance,  "fifty  feet  on  each 
side  of  the  marginal  limits"  of  the  ditch  or  reservoir,  and  the 
term  "marginal  limits"  has  been  construed  to  mean  the  high 
water  line.  The  right  is  also  given  to  take  from  the  adjacent 
public  land  material,  earth  and  stone  necessary  for  the  con- 
struction work,  but  it  has  been  held  that  this  right  is  for  con- 
struction work  only  and  not  for  repairs  or  improvements. 

The  act  specifically  provides  that  "the  privilege  herein 
granted  shall  not  be  construed  to  interfere  with  the  control 
of  water  for  irrigation  and  other  purposes  under  authority  of 
the  respective  states  and  territories."  The  land  office  accord- 
ingly does  not  attempt  to  regulate  appropriations  of  public 
waters,  but  simply  insists  upon  a  showing  by  the  applicant 
that  the  state  or  territorial  laws  governing  water  rights  have 
been  complied  with. 

The  act  further  provides  that  if  any  part  of  the  ditch  shall 
not  be  completed  within  five  years  after  its  location,  the  right 
of  way  for  such  part  shall  be  forfeited.  Regarding  such  for- 
feitures, the  Secretary  of  the  Interior  has  held  that  the  juris- 
diction of  the  Interior  Department  is  lost  upon  the  approval 
of  an  application,  and  any  action  looking  to  the  cancellation 
or  annulment  of  the  right  of  way  must  be  brought  in  the 
courts.  The  regulations  call  for  the  filing  of  affidavits  on  the 
completion  of  the  ditch  or  reservoir.  If  the  line  of  the  right 
of  way  as  granted  has  been  departed  from,  new  maps  and 
field  notes  must  be  filed  and  the  right  to  the  original  but 
unused  line  relinquished. 

The  act  also  provides  "that  no  such  right  of  way  shall  be 
so  located,  as  to  interfere  with  the  proper  occupation  by  the 
government  of  any  such  reservation,  and  all  maps  of  location 
shall  be  subject  to  the  approval  of  the  department  of  the  gov- 
ernment having  jurisdiction  of  such  reservation."  Under 


RIGHTS     OF     WAY     OVER     PUBLIC     LANDS  99 

this  provision  the  Forest  Service  has  prepared  special  regula- 
tions governing  rights  of  way  through  the  national  forests. 
No  construction  work  in  a  national  forest  will  be  allowed  on 
such  rights  of  way  until  the  application  has  been  approved  by 
the  Secretary  of  the  Interior,  or  unless  permission  for  such 
work  has  been  specifically  given,  and  as  a  condition  precedent 
to  such  approval  the  applicant  must  enter  into  such  stipula- 
tion and  execute  such  bond  as  the  Forest  Service  may  require. 
For  ditches  and  reservoirs  occupying  part  of  government  res- 
ervation other  than  national  forests,  no  application  for  right  of 
way  will  be  approved  by  the  Secretary  of  the  Interior  until 
it  has  been  approved  by  the  department  in  charge.  If  the 
right  of  way  is  upon  unsurveyed  lands,  the  map  must  be  filed 
within  twelve  months  after  the  official  survey  thereof,  and  no 
application  for  such  right  of  way  can  be  .approved  prior  to  the 
official  survey. 

The  following  paragraph  from  the  regulations  clearly 
states  the  nature  of  the  grant  of  right  of  way  under  the  act 
of  1891 : 

The  right  granted  is  not  in  the  nature  of  a  grant  of  lands,  but  is  a 
base  or  qualified  fee.  The  possession  and  right  of  use  of  the  lands 
are  given  for  the  purposes  contemplated  by  law,  but  a  reversionary 
interest  remains  in  the  United  States,  to  be  conveyed  by  it  to  the 
person  to  whom  the  land  may  be  patented  whose  rights  will  be  subject 
to  those  of  the  grantee  of  the  right  of  way.  All  persons  settling  on  a 
tract  of  public  land,  to  part  of  which  right  of  way  has  attached  for  a 
canal,  ditch,  or  reservoir,  take  the  land  subject  to  such  right  of  way, 
and  at  the  total  area  of  the  subdivision  entered,  there  being  no  author- 
ity to  make  deduction  in  such  cases.  If  a  settler  has  a  valid  claim  to 
land  existing  at  the  date  of  the  filing  of  the  map  of  definite  location, 
his  right  is  superior,  and  he  is  entitled  to  such  a  reasonable  measure 
of  damages  for  right  of  way  as  may  be  determined  upon  by  agreement 
or  in  the  courts,  the  question  being  one  that  does  not  fall  within  the 
jurisdiction  of  this  Department.  Section  21  of  the  act  of  March  3,  1891, 
provides  that  the  grant  of  a  right  of  way  for  a  canal,  ditch,  or  reservoir 
does  not  necessarily  carry  with  it  a  right  to  the  use  of  land  50  feet 
on  each  side,  but  only  such  land  may  be  used  as  is  necessary  for  con- 
struction, maintenance,  and  care  of  the  canal,  ditch,  or  reservoir.  The 
width  is  not  specified. 

Act  of  May  11,  1898:  The  Act  of  May  11,  1898,  author- 
izes the  use  of  rights  of  way  granted  under  the  Act  of  1891 
for  purposes  subsidiary  to  the  main  purpose  of  irrigation,  as 
is  shown  by  the  following  clause  from  section  two  of  the  act : 

And  said  rights  of  way  may  be  used  for  purposes  of  water  trans- 
portation, for  domestic  purposes,  or  for  the  development  of  power,  as 
subsidiary  to  the  main  purpose  of  irrigation. 


100  ELEMENTS     OP    WESTERN     WATER    LAW 

In  all  cases  the  applicant  must  prove  to  the  satisfac- 
tion of  the  Interior  Department  that  the  intended  use,  other 
than  irrigation,  is  really  subsidiary  thereto,  and  the  proof  must 
be  especially  clear  where  the  development  of  power  is  con- 
templated. 

Act  of  February  1,  1905:  Section  four  of  the  Act  of 
February  1,  1905,  authorizes  the  Secretary  of  the  Interior  to 
grant  rights  of  way  through  national  forests  to  citizens  and 
corporations  of  the  United  States  "for  municipal  or  mining 
purposes  and  for  the  purposes  of  milling  and  reduction  of 
ores."  The  nature  of  the  grant  is  the  same  as  that  under  the 
Act  of  March  3,  1891,  except  that  no  right  is  given  to  take 
any  material,  earth,  or  stone  for  construction  or  other  pur- 
poses, and  that  the  right  of  way  is  restricted  to  the  strip  neces- 
sary for  the  construction  and  maintenance  of  the  works.  Appli- 
cations are  made  in  the  same  way  as  those  under  the  Act  of 
1891. 

Act  of  February  15,  1901 :  Although  other  uses  are  spec- 
ified in  this  act,  it  is  now  of  importance  only  in  regard  to 
rights  of  way  through  the  public  lands  and  reservations  for 
reservoirs  and  canals  for  the  generation  of  electric  power,  and 
for  electric  transmission,  telephone  and  telegraph  lines.  It  is 
provided  in  the  act  that  any  permission  given  thereunder  may 
be  revoked  by  the  Secretary  of  the  Interior  in  his  discretion. 
The  right  granted  is  a  mere  license,  revocable  at  any  time, 
and  does  not  carry  with  it  permission  to  take  material,  earth, 
or  stone  from  the  public  lands  or  reservations  for  construc- 
tion or  other  purposes. 

The  Act  of  February  1,  1905,  transferred  the  administra- 
tive control  of  the  national  forests  from  the  Interior  Depart- 
ment to  the  Department  of  Agriculture,  so  that  the  latter 
department  has  jurisdiction  over  all  applications  under  the 
act  of  February  15,  1901,  for  permission  to  occupy  lands  in 
national  forests.  Public  lands  of  the  United  States  chiefly 
valuable  for  power  purposes  may  be  withdrawn  from  settle- 
ment or  entry  and  reserved  for  power  purposes  under  the 
withdrawal  act  of  June  25,  1910,  as  amended  by  act  of 
August  24,  1912,  or  under  Sections  13  and  14  of  the  omnibus 
Indian  Act  of  June  25,  1910. 
Comments  on  Departmental  Regulations — Act  of  Feb.  15,  1901 

The  most  recent  regulations  governing  applications  under 
the  act  of  1901  are  those  of  the  Agricultural  Department, 
issued  December  14,  1915,  and  those  of  the  Department  of 
the  Interior,  approved  March  1,  1913.  The  regulations  of  the 
two  departments  are  practically  the  same  and  permit  the 


RIGHTS   OF  WAY   OVER  PUBLIC *.i 

right  of  occupancy  for  a  period  of  fifty  years,  "unless  sooner 
revoked  by  the  Secretary". 

Under  the  regulations,  preliminary  power  permits  are 
issued  for  the  purpose  of  securing  the  data  required  for  an 
application  for  final  permit.  Final  power  permits  allow  the 
occupancy  of  the  lands  for  the  purpose  of  constructing,  main- 
taining and  operating  power  plants.  Applications  for  permits 
to  occupy  lands  other  than  national  forest  lands  are  made  to 
the  local  land  office  of  the  land  district  in  which  the  lands  are 
situated.  Applications  for  permits  to  occupy  national  forest 
lands  are  made  to  the  district  forester  of  the  district  in  which 
the  lands  are  situated. 

In  issuing  final  power  permits  a  date  is  fixed  for  the  be- 
ginning and  for  the  completion  of  construction  work.  In 
some  of  the  western  states,  notably  California  and  Oregon, 
there  is  a  co-operative  agreement  between  the  state  engineer 
(or  water  board  or  commission)  and  the  federal  departments, 
under  which  state  and  federal  officers  act  together  in  passing 
upon  applications  for  power  purposes  and  fix  the  same  time 
periods  for  beginning  and  completion  of  construction  in  issu- 
ing permits — the  state  office  issuing  the  "water  permit",  and 
the  federal  office  the  "land  permit." 

That  both  departments  recognize  that  water  appropria- 
tions are  in  the  control  of  the  state  is  clear  from  the  following 
paragraph,  which  is  contained  in  the  two  sets  of  regulations  in 
the  enumeration  of  items  forming  the  application  for  prelim- 
inary permit : 

A  duly  certified  copy  of  such  notice  of  application,  if  any,  as  is 
required  to  be  posted  or  filed,  or  both,  to  initiate  the  appropriation  of 
water  under  the  local  laws.  This  notice  or  application  should  provide 
for  use,  by  the  applicant  for  a  power  permit  or  by  his  predecessors,  of 
sufficient  water  for  the  full  operation  of  the  project  works. — Int.  Dept. 
Reg.  10  (L). 

Indeterminate  Licenses 

Although,  as  stated  in  the  regulations,  the  permit  is  for 
fifty  years  only,  that  the  tendency  of  the  two  departments  is 
towards  the  indeterminate  license  is  indicated  by  the  follow- 
ing paragraph  from  the  regulations  of  the  Interior  Depart- 
ment (the  regulations  of  the  Agricultural  Department  being 
but  slightly  different  upon  this  point)  : 

Upon  demand  in  writing  by  the  Secretary  to  surrender  the  permit 
to  the  United  States  or  to  transfer  the  same  to  such  state  or  municipal 
corporation  as  he  may  designate,  and  to  give,  grant,  bargain,  sell,  and 
transfer  with  the  permit  all  works,  equipment,  structures,  and  property 
then  owned  or  held  by  the  permittee  on  lands  of  the  United  States 
occupied  or  used  under  the  permit,  and  then  valuable  or  serviceable  in 


102        .        ELEMENTS  .  OF    WESTERN     WATER     LAW 

the  generation,  transmission,  and  distribution  of  power:  Provided,  (1) 
That  such  surrender  or  transfer  shall  be  demanded  only  in  case  the 
United  States  or  the  transferee  shall  have  first  acquired  such  other 
works,  equipment,  structures,  property  and  rights  of  the  permittee  as 
are  dependent  in  whole  or  in  essential  part  for  their  usefulness  upon 
the  continuance  of  the  permit;  (2)  that  such  surrender  or  transfer  shall 
be  on  condition  precedent  that  the  United  States  shall  pay  or  the 
transferee  shall  first  pay  to  the  permittee  the  reasonable  value  of  all 
such  works,  equipment,  structures,  and  property  to  be  surrendered  or 
transferred;  (3)  that  such  reasonable  value  shall  not  include  any  sum 
for  any  permit,  right,  franchise,  or  property  granted  by  any  public 
authority  in  excess  of  the  sum  paid  to  such  public  authority  as  a  pur- 
chase price  thereof;  and  (4)  that  such  reasonable  value  shall  be  deter- 
mined by  mutual  agreement  of  the  parties  in  interest,  and  in  case 
they  can  not  agree,  by  the  Secretary  under  a  rule,  which,  except  as 
modified  by  the  requirements  of  this  paragraph,  shall  be  the  then 
existing  rule  of  valuation  for  power  properties  in  condemnation  pro- 
ceedings in  the  state  in  which  the  properties  to  be  surrendered  or 
transferred  are  located.  But  nothing  herein  shall  prevent  the  United 
States  or  any  state  or  municipal  corporation  from  acquiring  by  any 
other  lawful  means  the  permit  or  the  works,  equipment,  structures,  or 
property  then  owned  or  held  by  the  permittee  on  lands  of  the  United 
States  occupied  or  used  under  the  permit. — Int.  Dept.  Reg.  14  (S). 

In  a  permit  issued  in  favor  of  the  International  Power 
and  Manufacturing  Company  on  Clark  Fork  of  Pend  d'Oreille 
River  in  the  State  of  Washington  under  date  of  July  22,  1913, 
and  executed  by  both  the  Secretary  of  the  Interior  and  the 
Secretary  of  Agriculture,  it  is  provided  that  the  permit  shall 
be  indeterminate,  but  revocable  for  non-payment  of  annual 
taxes  or  for  violations  of  other  provisions.  It  is  added,  how- 
ever, in  the  same  section  of  the  permit  that,  "It  is  further 
understood  and  agreed  that  under  the  terms  of  said  act  of 
Congress  'any  permission  given  by  the  Secretary  of  the  In- 
terior under  the  provision  of  this  act  may  be  revoked  by  him 
or  by  his  successor  in  his  discretion'."  The  permit  is,  there- 
fore, indeterminate  in  name  only.  As  the  act  makes  the  per- 
mission revocable,  no  Secretary  can  bind  his  successor  to 
other  conditions. 

Regulation  of  Rates  and  Service 

When  the  act  of  February  15,  1901  was  passed,  little  was 
known  of  the  power  of  the  states  in  the  regulation  of  public 
utilities.  Cities  and  counties  had  regulated  rates  for  domestic 
water  supply  and  irrigation  supply,  but  little  otherwise  had 
been  done.  Most  of  the  western  states  now  have  public  util- 
ity commissions  which  have  power  not  only  to  regulate  rates 
of  all  public  utilities,  but  also  to  regulate  their  service  as  well. 


RIGHTS     OF    WAY     OVER     PUBLIC.    LANDS  103 

Much  has  been  said  in  recent  years  of  a  growing  power 
monopoly.  As  monopoly  implies  control  over  output  and 
prices,  monopolies  cannot  exist  under  the  jurisdiction  of  public 
utility  commissions.  As  the  commissions  have  the  power  to 
fix  rates  and  compel  service,  the  public  is  completely  pro- 
tected, provided  no  capitalization  of  franchise  values  is  al- 
lowed. This  point  was  not  cared  for  in  any  of  the  federal 
right-of-way  regulations  issued  prior  to  those  of  1913.  The 
regulations  of  both  the  Interior  Department  and  the  Agri- 
culture Department  now  contain  the  following: 

That  in  respect  to  the  regulation  by  any  competent  public  author- 
ity of  the  service  to  be  rendered  by  the  permittee  or  the  price  to  be 
charged  therefor,  and  in  respect  to  any  purchase  or,  taking  over  of  the 
properties  or  business  of  the  permittee  or  any  part  thereof  by  the 
United  States,  or  by  any  state  within  which  the  works  are  situated  or 
business  carried  on  in  whole  or  in  part,  or  by  any  municipal  corpora- 
tion in  such  state,  no  value  whatsoever  shall  at  any  time  be  assigned 
to  or  claimed  for  the  permit  or  for  the  occupancy  or  use  of  Interior 
Department  lands  thereunder,  nor  shall  such  permit  or  such  occupancy 
and  use  ever  be  estimated  or  considered  as  property  upon  which  the 
permittee  shall  be  entitled  to  earn  or  receive  any  return,  income,  price, 
or  compensation  whatsoever. — Int.  Dept.  Reg.  14  (T). 

Although  there  appears  no  satisfactory  reason  why 
rights-of-way  for  irrigation,  mining,  and  domestic  purposes 
should  be  put  upon  a  basis  different  from  that  of  power,  it  is 
believed  that  there  will  be  general  ratification  among  those 
interested  in  power  development  if  the  act  can  be  so  amended 
that  the  revocable  permit  will  be  changed  to  an  indeterminate 
license  along  the  lines  now  incorporated  in  the  regulations  of 
the  two  departments  and  quoted  above.  If  this  be  done,  and 
the  two  departments  are  certainly  desirous  of  co-operating 
in  securing  such  legislation,  the  only  real  objection  to  existing 
regulations  will  be  regarding  the  annual  charge. 

The  Annual  Charge 

The  annual  charge  as  fixed  in  the  regulations  of  the  two 
departments  runs  from  lOc  for  the  first  year  to  $1  for  the  tenth 
and  each  succeeding  year  per  horsepower  of  the  "rental  capac- 
ity of  the  power  site."  In  the  permit  to  the  International  Power 
and  Manufacturing  Co.  no  compensation  is  required  for  the 
first  ten  years,  and  thereafter  the  company  must  pay  an 
amount  calculated  from  the  total  capacity  of  the  power  site 
at  rates  per  horsepower  per  year,  varying  directly  as  the 
square  of  the  average  price  for  electric  energy  charged  to, 
consumers  and  customers  of  the  company,  and  a  table  is  set 
forth  in  the  permit  showing  the  charges  to  be  paid  under 


104  ELEMENTS     OF    WESTERN    WATER    LAW 

varying  conditions.  In  addition  to  this  innovation,  the  permit 
fixes  the  maximum  price  at  which  electric  energy  can  be  sold, 
and  also  forbids  any  contract  providing  for  furnishing  to  one 
consumer  in  excess  of  50%  of  the  output  of  the  plant.  It  is 
also  stated  regarding  submission  to  rate  fixing  bodies : 

And  provided  further,  That  in  the  absence  of  regulation  of  service 
and  prescribing  of  prices  by  any  state  agency,  jurisdiction  in  the 
premises  will,  in  their  discretion,  be  exercised  by  the  Secretaries. 

There  are  two  main  arguments  for  the  elimination  of  the 
annual  tax — first,  that  it  amounts  to  a  direct  increased  charge 
to  the  consumer;  and  second,  that  it  is  not  consistent  with 
public  policy  regarding  the  development  of  our  resources. 

In  answer  to  the  first,  the  proponents  of  the  annual  tax 
originally  stated  that  the  time  had  not  come  when  public 
service  commissions  could  so  regulate  rates  that  the  annual 
tax  would  be  listed  as  an  item  of  operating  expenses  to  be 
allowed  the  utility  and  to  be  paid  by  the  consumer.  The  time 
has  now  come,  however,  and  the  commissions  of  a  number  of 
the  western  states  have  definitely  fixed  the  rates  of  hydro- 
electric power  utilities,  after  careful  analysis  of  all  the  ele- 
ments controlling  such  rates. 

In  the  early  history  of  this  country  the  public  lands  were 
looked  upon  as  a  source  of  revenue  only.  This  view  point 
changed  with  the  passage  of  the  homestead  act,  and  since 
that  time  our  land  laws  have  been  based  upon  development 
rather  than  financial  return  to  the  nation.  The  Desert  Land 
Act,  the  Carey  Act,  the  Reclamation  Act  and  the  various 
right  of  way  acts  in  behalf  of  railroads  and  canals  for  irriga- 
tion, mining  and  domestic  purposes  are  excellent  illustra- 
tions. In  none  of  these  acts  does  the  nation  seek  a  financial 
return  for  the  land,  other  than  the  nominal  charge  of  $1.25 
per  acre  under  the  Desert  Land  Act.  The  Departments  of 
Agriculture  and  the  Interior  through  their  regulations,  regard- 
ing rights  of  way  for  power  purposes,  have  chosen  to  depart 
from  this  public  policy  by  fixing  an  annual  charge.  The 
situation  would  be  more  easily  understood  if  an  annual  charge 
for  the  occupancy  of  the  public  land  for  any  and  all  purposes 
were  now  levied.  But  no  such  recommendation  has  been 
made. 

True  conservation  necessarily  implies  the  elimination  of 
waste — the  keeping  of  those  things  in  storage  which  can  well 
be  so  kept,  and  the  using  of  those  things  which  are  of  fleet- 
ing value.  There  is  probably  no  better  illustration  of  this 
latter  class  than  water  power  development.  Water  power 
unused  is  wasted,  but  when  used  takes  the  place  of  coal,  oil, 


RIGHTS     OP    WAY     OVER    PUBLIC     LANDS  105 

natural  gas  and  other  fuels,  which  can  be  left  stored  in  their 
natural  condition  until  needed  for  other  commercial  purposes. 
Under  a  true  spirit  of  conservation,  power  companies  should 
be  encouraged  by  a  bonus,  if  necessary,  to  enter  the  field  of 
hydroelectric  development  rather  than  to  make  inroads  into 
exhaustible  supplies  of  fuel.  A  practical  spirit  should  at 
least  dictate  that  water  power  projects  should  not  be  treated 
differently  than  other  development  work. 

The  fees  fixed  by  the  regulations  of  the  departments  are 
not  based  on  the  claim  of  federal  ownership  of  the  water,  but 
of  the  land.  That  the  applications  are  for  right  of  way  priv- 
ileges and  not  water  rights  is  emphasized  in  the  following 
from  Utah  Power  and  Light  Co.  v.  United  States  (37  Sup. 
Crt.  Rep.  387,  392)  decided  by  the  United  States  Supreme 
Court  March  19,  1917: 

Much  is  said  in  the  briefs  about  several  congressional  enactments 
providing  or  recognizing  that  rights  to  the  use  of  water  in  streams 
running  through  the  public  lands  and  forest  reservations  may  be 
acquired  in  accordance  with  local  laws,  but  these  enactments  do  not 
require  particular  mention,  for  this  is  not  a  controversy  over  water 
rights,  but  over  rights  of  way  through  lands  of  the  United  States, 
which  is  a  different  matter,  and  is  so  treated  in  the  right-of-way  acts 
before  mentioned.  See  Snyder  v.  Colorado  Gold  Dredging  Co.,  104 
C.C.A.  136,  181  Fed.  62,  69. 

As  the  defendants  have  been  occupying  and  using  reserved  lands 
of  the  United  States  without  its  permission  and  contrary  to  its  laws, 
we  think  it  is  entitled  to  have  appropriate  compensation  therefor 
included  in  the  decree.  The  compensation  should  be  measured  by  the 
reasonable  value  of  the  occupancy  and  use,  considering  its  extent  and 
duration,  and  not  by  the  scale  of  charges  named  in  the  regulations,  as 
prayed  in  the  bill. 

It  should  be  noted  that  the  Supreme  Court  holds  that  the 
annual  charge  should  be  measured  by  the  reasonable  value  of 
the  occupancy  and  use,  and  not  by  the  scale  of  charges  named 
in  the  regulations.  In  a  pamphlet  entitled  "Water  Power" 
(prepared  in  connection  with  the  Ferris  Bill — a  water  power 
bill  pending  in  Congress  during  1914-16)  Secretary  Lane  said 
in  part : 

The  true  value  of  power  sites  is,  then,  not  the  nominal  figure  of 
$1.25  per  acre,  not  their  value  as  agricultural  lands,  timber  lands,  or 
coal  lands,  but  their  value  as  dam  sites,  reservoir  sites,  or  for  other 
uses  in  connection  with  water-power  development,  and  for  this  pur- 
pose the  larger  and  more  valuable  sites  are  worth  millions  of  dollars. 

Secretary  Lane  specifically  argued  against  the  govern- 
ment asking  a  return  on  any  such  amount,  but  the  above 
statement  represents  his  view  of  values.  The  subject  is  decid- 
edly a  debatable  one  among  both  engineers  and  lawyers.  The 


106  ELEMENTS     OF     WESTERN     WATER     LAW 

Interior  Department,  through  its  Reclamation  Service,  is 
probably  the  greatest  single  user  of  reservoirs.  Its  engineers 
in  negotiating  for  its  many  reservoir  sites,  strenuously  ob- 
jected to  allowing  anything  in  excess  of  a  good  market  price 
for  the  tracts  as  agricultural  land  or  timber  land.  To  revert 
to  the  expression  used  in  the  above  quotation  from  the  Utah 
Power  Co.  case,  the  experienced  engineers  of  the  Reclama- 
tion Service  could  not  endorse  the  Secretary's  value  of 
"millions  of  dollars"  as  a  "reasonable  value  of  the  occupancy 
and  use." 

The  popular  notion  of  the  great  pecuniary  value  of  reser- 
voirs, water  rights,  and  other  intangibles  in  connection  with 
power  development  is  a  pure  myth  so  far  as  the  average 
project  is  concerned.  Because  the  water  falls  without  effort, 
the  popular  mind  has  thought  of  projects  conceived  and  con- 
summated in  the  same  way.  The  opinion  of  the  California 
Supreme  Court  in  San  Joaquin  Light  and  Power  Co.  v.  Rail- 
road Commission  (165  Pac.  16)  should,  therefore,  be  illumin- 
at'ng.  In  it,  the  Supreme  Court  upholds  the  Railroad  Com- 
mission in  refusing  to  allow  the  Power  Company  anything 
for  its  water  rights  other  than  the  money  actually  expended 
in  acquiring  them.  It  said: 

The  Commission,  in  the  present  case,  made  an  allowance  for  such 
value,  based  upon  the  cost  incurred  in  the  acquisition  of  these  rights. 
The  petitioner  claims  that  a  further  allowance  should  have  been  made. 
Concededly,  the  burden  is  upon  the  public  utility,  in  cases  of  this  kind, 
to  show  the  existence  of  any  value  claimed  by  it.  In  the  effort  to 
establish  the  value  of  its  water  rights,  the  petitioner  proceeded  upon 
two  theories. 

The  first  of  these  is  described  in  the  briefs  as  the  "comparative 
steam  cost  theory."  It  is  well  described  in  the  respondent's  brief  as 
"based  on  the  assumption  that  the  value  of  petitioner's  water  rights 
can  fairly  be  determined  by  capitalizing  at  8  per  cent.,  the  difference 
in  the  cost  of  service  resulting  from  the  operation  of  petitioner's 
hydraulic  installations  and  what  the  cost  of  service  would  be  if  peti- 
tioner's electric  energy  were  generated  in  a  steam  plant  located  near 
the  oil  field  and  burning  oil."  Of  this  element  of  the  case  it  is  suffi- 
cient to  say  that  there  was  substantial  evidence  before  the  Commission 
to  the  effect  that,  at  the  ruling  price  of  oil  at  the  time  of  the  hearing, 
the  petitioner  could  generate  electricity  by  means  of  steam  plants 
at  a  less  cost  than  that  involved  in  the  operation  of  its  hydro-electric 
plants,  after  making  due  allowance  for  all  charges  in  connection  with 
the  installation  of  the  necessary  steam  plants.  According  to  this  testi- 
mony, the  advantage  in  favor  of  generation  by  steam  would  continue 
until  the  price  of  oil  had  increased  by  50  per  cent.  Without  expressing 
any  opinion  regarding  the  propriety  of  this  method  of  fixing  the  value 
of  a  water  right,  it  is  perfectly  obvious  that  the  Commission  did  not 


RIGHTS     OF     WAY     OVER     PUBLIC     LANDS  107 

impair  the  petitioner's  rights,  when  it  concluded  that  the  application 
of  the  comparative  steam  cost  theory  did  not  show  that  the  water 
rights  had  any  value  beyond  their  cost. 

An  engineer  seeking  a  source  of  power  for  a  private  in- 
dustrial development  certainly  would  not  recommend  an 
hydroelectric  installation  unless  such  installation  was  less  ex- 
pensive, considering  all  financial  features  including  first  cost, 
maintenance  and  operation,  than  a  steam  plant.  The  same 
acid  test  should  be  applied  to  hydroelectric  power  utilities. 
There  can  be  no  value  to  a  water  right,  or  "reservoir  value" 
or  similar  intangible,  if  the  power  can  be  produced  and  dis- 
tributed to  present  points  of  use  at  a  lower  cost  by  some  other 
practical  method  of  installation.  It  is  evident,  therefore,  that 
no  general  scale  of  "occupancy  values"  can  be  made.  Each 
project  must  be  considered  on  its  own  basis.  If  the  policy  of 
the  annual  charge  must  continue,  the  fairest  general  rule  to 
apply  would  be  to  fix  an  annual  rental  equal  to  that  which 
the  land  occupied  would  return  if  in  private  ownership. 
Private  property  is,  of  course,  subject  to  condemnation,  where 
the  property  is  necessary  to  the  operation  of  a  public  utility. 
There  is  no  good  reason  for  not  submitting  the  public  domain 
to  the  principles  of  condemnation.  There  is  abundant  reason, 
however,  for  adopting  such  reasonable  congressional  legisla- 
tion that  the  question  of  condemning  public  lands  will  become 
unthinkable  from  the  business  standpoint. 

Water  Powers  on  Navigable  Streams 

As  stated  in  the  previous  chapter,  the  nation  has  the 
undoubted  right  to  control  navigable  streams  in  the  interests 
of  navigation.  Under  the  congressional  act  of  June  23,  1910, 
providing  for  the  use  of  navigable  streams  in  power  develop- 
ment, a  power  company  can  obtain  a  franchise  for  a  term  not 
exceeding  50  years,  but  with  no  provision  for  renewal  of 
franchise  or  compensation  to  the  company  for  its  property  at 
the  end  of  the  term.  An  annual  tax  must  also  be  paid. 

In  line  with  suggestions  made  for  right  of  way  permits, 
it  is  believed  that  the  franchise  for  power  development  on 
navigable  streams  should  be  indeterminate,  and  that  the  an- 
nual charge  should  be  only  sufficient  to  reimburse  the  nation 
for  any  expenditures  in  behalf  of  such  development. 

Summary 

In  the  interest  of  railroad,  irrigation,  mining  and  munici- 
pal water  supply  development,  the  national  government 
has  enacted  very  liberal  right  of  way  acts.  In  the  in- 
stance of  power  development,  only,  is  the  legislation 


108  ELEMENTS     OF    WESTERN     WATER     LAW 

unreasonable.  Although  the  political  power  ,of  the  state 
over  the  power  business  (when  intrastate)  is  conceded 
to  be  superior  to  that  of  the  nation,  departmental  regulations 
governing  the  use  of  the  public  ^domain  and  navigable  waters 
in  power  development  attempt  in  a  measure  to  regulate  the 
business  itself.  Although  the  nation  has  the  right  to  charge  a 
rental  for  the  use  of  its  public  lands,  it  has  only  done  so,  so 
far  as  rights  of  way  are  concerned,  in  the  case  of  power  pro- 
jects. Such  rental  charges  have  been  fixed  by  departmental 
regulation  in  an  arbitrary  scale,  and  are  not  measured  by  the 
reasonable  value  of  the  right  of  occupancy  in  a  given  case. 
Public  policy  should  dictate  consistency  in  the  use  of  the 
public  domain.  If  the  nation  will  exact  from  every  industry, 
using  its  lands  in  the  future,  a  rental  charge  commensurate 
with  the  value  of  the  lands  taken  and  occupied,  the  railroad 
man,  the  miner,  and  the  irrigator  may  object,  but  the  policy 
thus  inaugurated  will  at  least  be  consistent.  Under  proper 
insistence  upon  diligence  in  development  and  use,  and  the 
prohibition  of  intangible  values,  hydroelectric  power  devel- 
opment should  secure  the  positive  encouragement  of  both 
state  and  nation,  as  it  utilizes  and  conserves  the  natural  re- 
sources, now  going  to  waste  or  being  uneconomically  used, 
in  a  manner  not  possible  in  any  other  industry. 


CHAPTER  IX 

COMMERCIAL  AND  CO-OPERATIVE  IRRIGATION 
ENTERPRISES 

A  study  of  the  historical  development  of  irrigation  in  the 
western  states  shows  that  the  small  mountain  streams  along 
the  overland  trails  and  at  or  near  the  trading  posts  were  the 
first  to  be  used  for  agricultural  purposes.  As  mines  were 
discovered  and  operated,  the  waters  of  the  streams  in  the 
larger  valleys  were  diverted  by  simple  ditches  on  the  lower  or 
bottom  lands.  Later  two  or  more  settlers  joined  in  the  con- 
struction of  larger  ditches  for  the  irrigation  of  land  higher  up 
on  the  stream,  and  in  this  way  all  easily  accessible  lands  in 
the  valley  were  irrigated.  These  individual  and  partnership 
ditches  were  sufficient  for  the  lower  lands. 

It  soon  became  known  that  the  higher,  or  mesa  lands, 
were  better  than  the  bottom  lands,  but  the  problem  of  digging 
ditches  to  them  offered  too  many  difficulties  for  local  accom- 
plishment. It  was  at  this  point  that  eastern  and  foreign  cap- 
ital was  secured  for  the  construction  of  irrigation  canals  to 
reach  the  higher  lands.  The  size  and  number  of  such  systems 
built  during  the  eighties  indicate  that  the  promoters  had  an 
easy  task,  and  when  we  consider  the  time  and  results  of  the 
early  irrigation  their  success  must  be  taken  as  a  matter  of 
course.  The  simple  ditches  then  in  use  were  the  single  instru- 
ment by  which  land  worth  nothing  had  been  brought  into  a 
high  state  of  cultivation  and  great  value.  It  was  easy,  there- 
fore, to  picture  the  rich  returns  of  thousands  of  acres  of  such 
land,  now  barren  and  worthless,  when  under  a  well  con- 
structed canal.  No  argument  was  necessary  to  convince  the 
investor  that  the  real  wealth  lay  in  the  water,  and  that  a  sys- 
tem of  selling  water  for  irrigation  was  better  than  a  gold  mine. 

We  now  know  that  most  of  the  systems  thus  built  were 
financial  disasters  and  that  the  failure  was  not  due  to  either 
lack  of  land  or  water,  or  want  of  engineering  skill..  The  chief 
error  was  the  neglect  to  "tie"  the  land  to  the  water.  The  pro- 

109 


110 


ELEMENTS     OF     WESTERN     WATER     LAW 


moters  and  investors  were  right  in  believing  that  the  land 
without  the  water  must  remain  valueless,  but  they  erred  in 
thinking  that  the  settlers  on  the  land  under  the  system  would 
promptly  take  water  on  any  terms  dictated.  The  settler,  un- 
fortunately, was  in  most  cases  a  mere  "sooner,"  a  waiter  of 
fortune  who  hurried  to  the  choice  land,  there  to  stay  until 
bought  out  by  the  real  home  builder.  During  the  eighties  most 
of  the  land  to  be  covered  by  the  larger  systems  was  govern- 
ment land  and  there  were  no  statutes  by  means  of  which  the 
canal  company  could  protect  itself  against  filings  by  "sooners" 
or  secure  a  lien  upon  the  land  for  its  unpaid  water  charges. 
Every  western  state  affords  illustrations  of  large  sums  lost  to 
its  investors  in  such  irrigation  enterprises  (now  called  com- 
mercial enterprises)  and  intelligent  capital  today  will  invest  in 
no  scheme  where  land  and  water  do  not  go  together.  In  fact, 
the  attractive  enterprise  is  really  a  land  deal,  to  which  the 
construction  of  the  irrigation  system  is  but  incidental. 

The  following  table  (from  the  census  statistics)  shows 
the  total  area  irrigated  in  1909,  the  area  irrigated  in  1909  by 
co-operative  enterprises,  and  the  area  irrigated  in  1909  by 
commercial  enterprises.  The  commercial  enterprise  differs 
from  the  mutual  or  co-operative  enterprise  in  that  the  former 
supplies  water  for  compensation  to  parties  having  no  interest 
in  the  works,  and  the  latter  supplies  water  to  stockholders 
only. 


A 

STATE                  Acr 

Arid  States  
Arizona 

Jl  Classes  of 
Enterprises, 
eage  irrigated, 
1909 

13,738,485 
320  051 

Co-operative 
Enterprises. 
Acreage  irrigated,     . 
1909 

4,643,539 
101  025 

Commercial 
Enterprises. 
A-creage  irrigated, 
1909 

1,451,806 
80 

California  
Colorado  
Idaho  

2,664,104 
2,792,032 
1,430,848 

779,020 
1,273,141 
628,102 

746,265 
159,457 

44,872 

Kansas 

37  479 

27  372 

Montana  
Nebraska  
Nevada  

1,679,084 
255,950 
701,833 

333,926 
78,605 
78,966 

62,544 
24,834 
8,864 

New  Mexico  
North  Dakota  
Oklahoma 

461,718 
10,248 
4  388 

251,911 

2  000 

28,190 

Oregon  

South  Dakota   
Texas  (exclusive  of 
rice)  
Utah  

686,129 
63,248 

164,283 
999,410 

149,985 
13,601 

41,186 
687,260 

77,387 
6,300 

73,440 
64,727 

Washington  
Wyoming  

344,378 
1,133,302 

81,122 
116,317 

66,911 
87,935 

IRRIGATION     ENTERPRISES  111 

As  California  has  comparatively  so  large  a  percentage  of 
commercial  enterprises,  it  might  be  inferred  that  such  projects 
are  especially  numerous  and  popular.  The  fact  is,  however, 
that  the  large  acreage  so  served  is  under  a  small  number  of 
unusually  extensive  systems  and  that  the  mutual  systems  are 
the  rule. 

The  commercial  enterprises  may  be  divided  into  three 
groups  as  follows: 

First:  Enterprises  furnishing  water  on  annual  rental 
basis  only ; 

Second :  Enterprises  selling  water  rights  and  charging 
either  a  fixed  or  variable  annual  rate  in  addition; 

Third:  Enterprises  selling  water  rights  and  a  pro  rata 
interest  in  the  irrigated  system.  The  enterprises  of  this  group 
become  mutual  enterprises. 

First  Group  of  Commercial  Enterprises.  Among  the 
well-known  California  examples  of  commercial  enterprises 
delivering  water  on  a  rental  basis  only,  are  the  Moore  Ditch, 
now  the  property  of  the  Yolo  Water  and  Power  Co.,  irrigating 
land  on  the  west  side  of  the  Sacramento  Valley  near  Wood- 
land; the  San  Joaquin  and  Kings  River  Canal  and  Irrigation 
Company,  irrigating  a  large  area  on  the  west  side  of  the  San 
Joaquin  Valley;  and  the  Pacific  Gas  and  Electric  Company, 
operating  a  number  of  canals  in  the  foothills  of  the  Sierra  in 
Placer  County.  The  Steamboat  Canal  is  one  of  the  oldest 
canals  in  Truckee  Meadows,  Nevada.  The  Ridenbaugh  Canal 
is  one  of  the  most  important  of  the  older  canals  in  Idaho. 
It  irrigates  a  large  area  in  the  Boise  Valley. 

Second  Group  of  Commercial  Enterprises.  This  type  of 
enterprise,  selling  water  rights  and  charging  an  additional 
annual  rate,  was  decidedly  the  favorite  system  in  the  earlier 
irrigation  development.  The  well-known  California  Develop- 
ment Company,  diverting  water  from  the  Colorado  River  for 
delivery  to  the  mutual  water  companies  in  the  Imperial  Val- 
ley, is  an  excellent  illustration.  The  Fresno  Canal  and  Irriga- 
tion Company  irrigates  a  large  area  in  the  vicinity  of  Fresno, 
California.  The  Arizona  Canal  is  one  of  the  best  known  of 
the  older  systems  in  Arizona.  It  irrigates  a  large  area  in  the 
Salt  River  Valley  and  has  been  absorbed  by  the  Salt  River 
project  of  the  Reclamation  Service.  The  Pecos  Irrigation  and 
Improvement  Company,  one  of  the  largest  irrigation  projects 
in  New  Mexico,  has  been  taken  over  by  the  Reclamation 
Service  in  connection  with  the  Carlsbad  project.  The  Sunny- 
side  Canal,  the  best  known  of  the  older  systems  in  the  Yakima 
Valley,  Washington,  is  now  part  of  the  Yakima  project  of  the 


112  ELEMENTS     OF     WESTERN     WATER     LAW 

Reclamation  Service.  The  Sunnyside  Canal  was  a  mixture  of 
group  one  and  group  two,  as  it  served  lands  holding  water 
rights  for  one  annual  rental  and  also  served  lands  without 
water  rights  for  an  increased  annual  rental. 

Third  Group  of  Commercial  Enterprises.  A  number  of 
the  best  known  mutual  water  companies  of  southern  Califor- 
nia were  originally  enterprises  of  this  group.  The  Riverside 
Trust  Company  formerly  owned  the  land  and  the  water  rights 
now  under  the  Gage  Canal  in  the  vicinity  of  Riverside,  Cali- 
fornia. The  land  was  sold  with  shares  of  stock  in  the  canal 
company.  The  Patterson  Land  Company,  irrigating  about 
19,000  acres  on  the  west  side  of  the  San  Joaquin  River  in 
Stanislaus  County,  in  selling  its  land  includes  one  share  of 
stock  in  the  water  company.  Under  the  agreements  of  sale, 
the  land  company  will  retain  management  until  75%  of  the 
land  is  sold,  after  which  the  land  purchasers  will  be  given 
control,  and  the  water  company  will  be  a  regular  mutual 
company.  In  the  eighties  a  number  of  canal  systems  were 
built  in  Colorado  which  sold  water  rights  and  also  charged 
an  annual  rate.  This  custom  was  stopped  by  the  Anti-Royalty 
Act  of  1887,  which  made  it  unlawful  for  a  ditch  owner  to 
accept  payment,  corresponding  to  that  for  the  so-called  water 
right,  before  supplying  water  at  the  annual  rate.  To  evade 
the  provisions  of  the  act  water  rights  were  sold  providing 
that  when  water  rights  amounting  to  the  estimated  capacity 
of  the  canal  were  sold,  the  company  would  transfer  the  system 
to  a  new  company  formed  exclusively  of  water  users.  In  the 
early  days,  the  estimated  capacity  was  placed  so  high  that  it- 
would  not  become  necessary  to  form  the  new  company  and 
relinquish  the  works.  In  more  recent  years,  however,  such 
contracts  have  been  executed  and  the  capacity  fixed  by  the 
company  in  good  faith,  and  the  type  has  been  extensively  used 
not  only  in  Colorado  but  in  Nebraska  and  Oregon  also. 

Co-operative  or  Mutual  Enterprises 

The  co-operative  enterprises  referred  to  in  the  table  are 
those  which  are  controlled  by  the  water  users  under  some 
organized  form  of  co-operation.  Ordinarily  this  form  is  a 
regular  corporation  and  the  water  rights  are  represented  by 
stock  in  the  corporation.  Individual  and  partnership  enter- 
prises which  belong  to  individual  water  users  or  to  a  small 
group  of  users  are  not  included  under  the  caption,  "Co- 
operative Enterprises,"  in  the  table. 

The  mutual  enterprise  is  an  old  type  in  California.  So 
long  ago  as  1856  the  Los  Angeles  Vineyard  Association  was 
formed  in  San  Francisco  and  purchased  a  large  tract  of  a  Span- 


IRRIGATION     ENTERPRISES  113 

ish  rancho  lying  along  the  Santa  Ana  River  in  Los  Angeles 
County.  The  original  plan  was  to  work  the  land  upon  a 
co-operative  basis  for  about  three  years  and  then  make  an 
allotment  of  the  subdivisions.  In  1859  the  Anaheim  Water 
Company  was  incorporated  and  the  irrigation  system  was 
conveyed  to  it.  The  stock  of  the  water  company  was  divided 
into  fifty  shares  and  was  then  made  appurtenant  to  the  land 
and  could  be  conveyed  only  with  the  land. 

As  stated  above,  the  California  Development  Company, 
diverting  water  from  the  Colorado  River  for  irrigation  in  the 
Imperial  Valley,  furnished  water  to  mutual  water  companies. 
The  companies  are  known  as  Imperial  Water  Companies  Nos. 
1,  4,  5,  6,  7,  8  and  12.  They  differ  from  the  ordinary  mutual 
companies  in  that  they  own  a  part  only  of  the  system — that  is, 
the  laterals  for  distribution  within  the  boundaries  covered 
by  the  company.  All  of  the  land  irrigated  in  the  Imperial 
Valley  in  California  is  now  included  in  the  Imperial  Irrigation 
District. 

The  mutual  water  company  is  a  popular  form  of  organi- 
zation in  all  of  the  western  states.  Many  of  the  original  indi- 
vidual or  partnership  ditches  are  now  operated  by  mutual 
companies.  The  Grand  Valley  Irrigation  Company  irrigating 
a  large  area  in  the  Grand  Valley  of  Colorado,  is  a  mutual  com- 
pany— each  share  of  stock  entitling  its  owner  to  one-fourth 
inch  of  water.  With  the  exception  of  the  Arizona  Canal, 
practically  every  large  canal  system  in  Salt  River  Valley, 
Arizona,  was  owned  and  operated  by  a  mutual  water  com- 
pany— now  part  of  the  Salt  River  project. 

There  is  no  fixed  method  of  stating  the  amount  of  water 
represented  by  a  share  of  stock  in  a  mutual  company.  Very 
often  one  share  of  stock  entitles  its  owner  to  sufficient  water 
for  one  acre  of  land.  In  a  great  number  of  cases  one  share 
of  stock  represents  a  definite  amount  of  water.  In  all  cases, 
however,  each  share  of  stock  of  a  given  company  represents 
the  same  amount  of  water  for  irrigation  purposes,  so  that,  if 
there  be  a  shortage,  the  supply  is  pro-rated  in  proportion  to 
the  amount  of  stock  held. 

The  constitution  and  by-laws  of  a  number  of  the  mutual 
companies  provide  that  the  stock  shall  be  appurtenant  to  the 
land,  and  often  that  it  shall  be  inseparable  therefrom.  In 
many  other  mutual  companies  the  stock  is  designated  as 
"floating" — that  is,  it  is  not  made  appurtenant  to  a  specified 
tract  and  may  be  used  on  different  parcels  of  land  in  different 
years.  Section  324  of  the  Civil  Code  of  California,  dealing 


114  ELEMENTS     OP     WESTERN     WATER     LAW 

with  the  transfer  of  stock  of  corporations,  was  amended  in 
1907  by  the  addition  of  the  following: 

*  *  *  provided,  however,  that  any  corporation  organized  for, 
or  engaged  in  the  business  of  selling,  distributing,  supplying,  or  deliv- 
ering water  for  irrigation  purposes  or  for  domestic  use,  may  in  its  by- 
laws provide  that  water  shall  only  be  so  sold,  distributed,  supplied,  or 
delivered  to  owners  of  its  capital  stock,  and  that  such  stock  shall  be 
appurtenant  to  certain  lands  when  the  same  are  described  in  the  certi- 
ficate issued  therefor;  and  when  such  certificate  shall  be  so  issued,  and 
a  certified  copy  of  such  by-law  recorded  in  the  office  of  the  county 
recorder  in  the  county  where  such  lands  are  situated,  the  shares  of 
stock  so  located  on  any  land  shall  only  be  transferred  with  said  lands, 
and  shall  pass  as  an  appurtenance  thereto. 

The  Regulation  of  Commercial  Enterprises 

At  an  early  date  statutes  were  passed  in  a  number  of  the 
western  states  authorizing  the  county  supervisors,  or  com- 
missioners, to  fix  the  rate  at  which  commercial  enterprises 
should  furnish  water  to  irrigators — such  authority  being  now 
vested  in  the  railroad  or  public  service  commissions.  In  the 
absence  of  such  rate  fixing  the  rates  established  by  the  water 
company  controlled.  The  state  and  federal  courts  in  Califor- 
nia have  vacillated  in  their  determination  as  to  whether  rates 
agreed  upon  in  formal  water  right  contracts,  executed  prior 
to  the  rate  fixing  by  the  county  board,  should  be  enforced  after 
lower  rates  had  been  fixed  by  such  board.  On  March  2,  1897, 
the  California  legislature  amended  the  act  providing  for  such 
regulation  by  adding  a  new  section  expressly  stating  that 
nothing  in  the  original  act  shall  be  construed  to  "invalidate 
any  contract  already  made."  The  new  section  was  interpreted 
by  the  California  Supreme  Court  in  Stanislaus  Water  Com- 
pany v.  Bachman  (152  Cal.  716),  wherein  it  was  held,  "And 
under  the  present  statute  the  contract  rights  prevail  in  all 
cases,  the  boards  of  supervisors  being  powerless  to  affect  or 
interfere  with  them." 

In  the  more  recent  case  of  Leavitt  v.  Lassen  Irrigation 
Company  (157  Cal.  82)  decided  December  24,  1909,  the  Su- 
preme Court  said: 

The  language  of  this  court  in  Stanislaus  Water  Company  v. 
Bachman  .  .  .  must  be  construed  in  the  light  of  the  facts  there 
presented 

If  it  be  conceived  that  Section  552,  Civil  Code,  is  designed  to 
confer  upon  any  particular  consumer  any  special,  permanent,  and 
preferential  right  above  what  is  here  stated,  that  effort  being  plainly 
violative  of  the  Constitution,  would  be  held  void.  The  same  declara- 
tion applies  to  the  provisions  of  the  act  entitled  .  .  .  approved 
March  12,  1889,  and  of  the  amendment  of  that  act  by  the  act  approved 
May  2,  1897. 


IRRIGATION     ENTERPRISES  115 

The  Leavitt  case  deals  with  the  prior  and  perpetual  water 
right  reserved  by  the  former  owner  (the  plaintiff)  in  selling 
his  commercial  enterprise  to  the  company  (defendant).  It 
should,  therefore,  be  easily  distinguished  from  the  case  of  a 
company  selling  all  of  its  water  rights  upon  the  same  basis. 
It  has,  however,  caused  a  great  deal  of  confusion. 

The  cases  on  this  point  have  been  most  interesting  in 
connection  with  the  California  Development  Company,  fur- 
nishing water  to  the  Imperial  Valley.  In  Imperial  Water 
Company  No.  5  v.  Holabird  (receiver  of  the  California  Devel- 
opment Company)  (197  Fed.  4),  decided  May  6,  1912,  the 
U.  S.  Circuit  Court  of  Appeals  holds  that  the  water  right 
contract  between  the  Development  Company  and  the  Mutual 
Company  is  void  on  the  grounds  that  the  company  is  a  public 
service  corporation  and,  therefore,  obligated  to  furnish  water 
on  tender  of  the  annual  rate.  The  opinion  was  based  on  the 
assumption  that  the  company  is  a  public  service  corporation. 
The  Supreme  Court  of  California,  however,  in  Thayer  v.  Cali- 
fornia Development  Company  (164  Cal.  117),  decided  Novem- 
ber 8,  1912,  holds  that  the  company  is  not  a  public  service 
corporation  as  it  has  not  sold  water  to  any  users  except  those 
under  contract  with  it.  The  Court,  therefore,  denies  the  right 
of  Thayer  to  receive  water  from  the  company  without  purchas- 
ing and  holding  a  water  right. 

According  to  the  Thayer  decision,  the  water  right  con- 
tracts of  commercial  enterprises  of  the  second  group  will  be 
upheld  in  all  cases  where  the  company  has  delivered  water 
only  to  those  holding  contracts.  In  order  to  place  such  com- 
panies in  the  class  of  public  utilities  subject  to  the  jurisdiction 
of  the  California  Railroad  Commission,  an  act  was  passed  in 
1913  declaring  all  water  companies  public  utilities  except  those 
organized  for  the  sole  purpose  of  delivering  water  to  their 
stock  holders  at  cost.  This  act  makes  all  California  irrigation 
companies,  except  mutual  companies,  public  utilities. 

Although  a  number  of  companies  considering  themselves 
strictly  contract  companies  have  been  before  the  California 
Supreme  Court  since  the  passage  of  the  1913  act,  in  each 
instance  it  was  shown  that  they  had  been  operating  as  a  public 
utility  and,  therefore,  did  not  come  within  the  Thayer  decision. 
For  instance,  in  Palermo  Land  and  Water  Company  v.  Rail- 
road Commission  (160  Pac.  228)  there  was  a  provision  in  the 
contracts  between  the  company  and  the  purchasers  of  land 
that  the  company  would  supply  water  at  rates  to  be  fixed  by 
law.  The  company  had  also  previously  applied  to  the  Rail- 
road Commission  to  have  its  rates  for  water  established. 


116  ELEMENTS     OF     WESTERN     WATER     LAW 

Either  of  these  reasons,  the  Court  held,  was  sufficient  to  make 
the  company  a  public  utility. 

Wherever  a  company  can  be  shown  to  have  operated  as  a 
public  utility,  the  rule  is  that  contracts  made  by  it,  even 
though  valid  when  made,  must  be  taken  to  have  been  entered 
into  in  view  of  the  continuing  power  of  the  state  to  control 
the  rates  to  be  charged  by  public  service  corporations  (Ray- 
mond Lumber  Company  v.  Raymond  Light  and  Water  Com- 
pany,— Washington, — 159  Pac.  133).  Although  as  shown  in 
the  Raymond  case,  the  Supreme  Court  of  Washington  does 
not  hesitate  to  abrogate  water  contracts,  it  has  held  in  Pasco 
Reclamation  Company  v.  Rankert  (131  Pac.  1143)  that  under 
a  contract  between  a  land  owner  and  an  irrigation  company 
and  later  conveyance  of  water  right  to  the  land  owner,  he  was 
liable  for  a  maintenance  charge  of  $5.00  per  acre  per  year 
which  he  must  pay  whether  water  is  used  or  not.  The  Wash- 
ington Supreme  Court  also  held  in  Fruitland  Irrigation  Com- 
pany v.  Thayer  (160  Pac.  1048)  that  contracts  for  water  rights 
which  expressly  provide  that  the  charge  shall  become  a  lien  on 
land  in  favor  of  an  irrigation  company  are  enforceable  in  cases 
of  default. 

The  Supreme  Court  of  Nebraska  in  McCook  Irrigation 
and  Water  Power  Company  v.  Burtless  (152  NW.  334)  laid 
down  a  rule  contrary  to  the  above.  The  company  petitioned 
the  Railway  Commission  to  raise  its  annual  charge  from  $1.00 
per  acre  to  $2.00  per  acre.  The  company  operates  upon  the 
plan  of  the  third  type  of  irrigation  enterprise  explained 
above — its  contracts  providing  that  when  water  rights  to  the 
capacity  of  the  canal  have  been  sold  and  paid  for,  the  canal 
becomes  by  certain  acts  of  its  officers,  therein  specified,  the 
property  of  the  water  right  owners.  The  water  rights,  there- 
fore, represent  an  interest  in  the  canal  system.  The  Supreme 
Court  held  that  such  contracts  were  entered  into  subject  to 
the  right  of  the  state  in  the  exercise  of  its  police  power  to 
regulate  and  fix  reasonable  rates  to  be  charged  for  the  use  of 
water,  and  upheld  the  decision  of  the  Railway  Commission  in 
raising  the  annual  rate  from  $1.00  to  $2.00  per  acre  per  annum. 
As  the  Supreme  Court  of  Nebraska,  on  account  of  early  state 
legislation,  has  uniformly  considered  irrigation  canals  to  be 
in  the  same  class  as  railroads  and  other  common  carriers,  the 
McCook  case  cannot  be  considered  a  precedent  to  be  generally 
followed  elsewhere. 

There  are  a  number  of  instances  in  southern  California 
where  a  town  has  grown  up  within  the  boundaries  of  the  terri- 
tory served  by  a  mutual  water  company.  In  some  cases  the 


IRRIGATION     ENTERPRISES  117 

water  supply  for  municipal  use  within  the  town  is  secured 
from  the  mutual  water  company  through  the  ownership  of 
stock  in  such  company  by  the  town.  An  attempt  has  been 
made  in  a  few  instances  to  have  such  mutual  water  company 
declared  a  public  utility,  but  the  Supreme  Court  of  California 
in  Escondido  Mutual  Water  Company  v.  Escondido  (169  Cal. 
772)  has  held  to  the  contrary.  The  following  extract  from  the 
opinion  is  in  point: 

A  mutual  water  company,  organized  to  distribute  the  water  which 
it  controlled  to  its  stockholders  at  cost  and  ratably  in  the  proportion 
which  their  shares  of  stock  bore  to  the  total  issued  stock  of  the  com- 
pany, is  not  charged  with  the  public  duty  of  supplying  to  a  municipal 
corporation  that  was  one  of  its  stockholders  water  in  excess  of  the 
proportionate  amount  to  which  it  was  entitled  as  a  stockholder,  on  the 
theory  that  the  company  having  undertaken  to  furnish  water  for 
municipal  purposes,  was  obligated  to  continue  to  do  so  in  accordance 
with  the  needs  of  the  municipality  up  to  the  capacity  of  the  company's 
ability  to  supply  water,  if  the  only  water  that  the  company  ever  volun- 
tarily furnished  the  municipality  was  the  proportionate  share  to  which 
it  was  entitled  as  such  stockholders,  and  all  excess  of  water  which  it 
received  was  taken  by  it  from  the  company  by  force  and  against  the 
company's  protest. 

There  are  a  number  of  mutual  water  companies  securing 
water  under  contract  from  companies  in  public  service.  In 
Limoniera  Company  v.  Railroad  Commission  (162  Pac.  1033) 
a  mutual  company,  so  supplied,  argued  that  its  contract  with 
the  public  service  company  could  not  be  abrogated  by  the  com- 
mission. The  California  Supreme  Court  held  that  a  mutual 
water  company  taking  water  from  a  public  service  corporation 
to  be  supplied  to  its  stock  holders  and  to  be  used  on  their 
lands,  occupies  the  same  position  as  any  other  consumer  under 
the  system,  and  the  rental  charges  against  it  are  accordingly 
subject  to  regulation.  "It  is  one  of  the  'public'  that  is  being 
served  by  a  public  utility." 

Who  Owns  the  Water  Right 

The  expression  "selling  water"  is  so  commonly  used  that 
few  laymen  ever  doubt  that  the  irrigation  company  is  the 
owner  of  the  water  right  and  that,  in  selling  its  system  or  in 
rate  fixing,  it  is  entitled  to  a  considerable  sum  for  such  right. 
It  is  surprising  to  most,  therefore,  to  learn  that  the  Supreme 
Court  of  Colorado,  so  long  ago  as  1887,  in  Wheeler  v.  North- 
ern Colorado  Irrigation  Company  (17  Pac.  487)  said: 

It  (the  irrigation  company)  exists  largely  for  the  benefit  of 
others;  being  engaged  in  the  business  of  transporting,  for  hire,  water 
owned  by  the  public  to  the  people  owning  the  right  to  its  use. 


118  ELEMENTS     OF    WESTERN     WATER     LAW 

The  question  was  not  a  direct  issue  in  California  until  the 
comparatively  recent  case  of  San  Joaquin  &  Kings  River  Canal 
and  Irrigation  Company  v.  Stanislaus  County  (191  Fed.  875), 
decided  September  18,  1911.  The  company  had  brought  suit 
against  the  county  to  enjoin  the  enforcement  of  water  rates 
fixed  by  the  County  Supervisors.  One  of  its  contentions  was 
that  its  water  rights  were  worth  $1,000,000,  and  that  nothing 
had  been  allowed  for  them  in  the  Supervisors'  valuation.  After 
a  careful  consideration  of  the  authorities,  Judge  Morrow  re- 
fused to  accept  the  contention  in  the  following  words : 

The  claim,  as  stated,  is  manifestly  not  sufficient  to  state  a  right 
of  diversion.  It  must  appear,  further,  that  the  complainant  is  either 
the  owner  of  land  for  which  the  water  is  being  appropriated  for  a 
beneficial  use,  or  that  the  water  is  being  diverted  for  the  purpose  of 
being  carried  by  the  complainant  to  consumers  who  own  land  for  which 
the  water  is  being  appropriated  for  a  beneficial  use,  and  that  the  water 
is  being  so  used.  The  complainant  in  this  case  is  not  the  owner  of 
any  land  for  which  the  water  is  being  appropriated.  The  complain- 
ant's right  to  divert  the  water  of  the  river  is  therefore  based 
upon  and  is  measured  and  limited  by  the  beneficial  use  of  certain 
consumers  for  which  the  water  is  being  appropriated.  But,  if  the 
amount  required  by  these  consumers  for  a  beneficial  use  is  not  1350 
cubic  feet  of  water  per  second,  then  complainant  has  no  right  to  divert 
that  quantity  of  water;  or  if,  for  example,  these  consumers  require 
only  100  cubic  feet  per  second  for  beneficial  use,  then  that  would  be 
the  basis  and  measure  and  limit  of  complainant's  right  to  divert  water 
from  the  river,  and  not  the  capacity  of  complainant's  headworks,  canals 
and  ditches  used  in  making  such  diversion.  The  water  right  must,  there- 
fore, be  the  right  of  the  consumer  and  attached  to  his  land,  and  not 
the  right  of  the  complainant  attached  to  its  canal  system. 

The  above  statement  by  Judge  Morrow  is  of  interest  as 
it  reflects  a  principle  of  appropriation  as  laid  down  repeatedly 
by  the  Supreme  Courts  of  Arizona,  Colorado  and  Nebraska. 
On  May  4,  1914,  the  Supreme  Court  of  Nevada,  in  Prosole  v. 
Steamboat  Canal  Co.  (140  Pac.  720),  in  accepting  the  view  of 
the  Supreme  Court  of  Arizona  and  of  Colorado,  refers  to  the 
company  as  the  "diverter"  and  to  the  consumer  as  the  "con- 
verter" or  actual  appropriator. 

On  April  27,  1914,  just  one  week  before  the  Prosole  decis- 
ion and  too  late  to  have  been  called  to  the  attention  of  the 
Nevada  Supreme  Court,  the  Supreme  Court  of  the  United 
States  decided  San  Joaquin  and  Kings  River  Canal  and  Irri- 
gation Co.  v.  Stanislaus  County  (233  U.  S.  454),  on  appeal 
from  the  circuit  court  (Judge  Morrow).  In  a  very  brief  opin- 
ion (less  than  two  pages)  in  which  the  relation  between  the 
company  and  the  consumer  in  perfecting  an  appropriation  is 


IRRIGATION     ENTERPRISES  119 

hardly  discussed,  the  decree  of  the  lower  court  is  reversed. 
An  important  part  of  the  opinion  is  the  following : 

It  well  may  be  true  that  if  the  waters  were  taken  for  a  superior 
use  by  eminent  domain  those  whose  lands  were  irrigated  would  be 
compensated  for  the  loss.  But  even  if  the  rate  paid  is  not  to  be  deter- 
mined as  upon  a  purchase  of  water  from  the  plaintiff,  still,  at  the 
lowest,  the  plaintiff  has  the  sole  right  to  furnish  this  water,  the  owner 
of  the  irrigated  lands  cannot  get  it  except  through  the  plaintiff's  help, 
and  it  would  be  unjust  not  to  take  that  fact  into  account  in  fixing  the 
rates.  We  are  not  called  upon  to  decide  what  the  rate  shall  be,  or 
even  the  principle  by  which  it  shall  be  measured. 

Although  this  decision  of  the  United  States  Supreme 
Court  settles  the  question  so  far  as  California  is  concerned, 
it  does  not  necessarily  hold  for  other  jurisdictions  and  espe- 
cially those  in  which  the  state  supreme  court  has  held  to  the 
contrary.  In  Pioneer  Irr.  Co.  v.  Board  of  Commissioners  of 
Yuma  County,  Colo.  (236  Fed.  790),  the  sole  question  to  be 
determined  by  the  United  States  District  Court  of  Colorado 
was  whether  or  not  the  Board  should  have  considered  the 
value  of  the  water  in  fixing  the  rates.  The  Court  said : 

I  suppose  the  plaintiff  was  induced  by  San  Joaquin,  etc.,  Co.  r. 
Stanislaus  County,  233  U.  S.  454,  34  Sup.  Ct.  652,  58  L.  Ed.  1041,  to 
exhibit  this  bill.  But  I  am  not  able  to  accept  that  case  as  a  support 
to  the  plaintiff's  claim.  The  Constitution  and  statutes  of  California 
empowered  the  carrying  company  in  that  case  to  appropriate  water 
for  sale,  and  in  the  exercise  of  the  right  thus  given  it  acquired 
for  that  purpose  some  of  the  water  by  mere  diversion  from  the  natural 
stream  and  purchased  some  of  it.  A  carrying  ditch  in  Colorado  is  not 
given  such  power  and  cannot  acquire  such  rights  as  a  carrying  ditch. 
There  is  merit  in  the  contention  that  our  Constitution  (Article  XVI, 
Sec.  8)  and  statutes  (Rev.  Stat.  Col.  1908,  Sees.  3263-3268)  could  be 
given  a  like  construction,  but  our  Supreme  Court  has  decided  other- 
wise. (Citing  many  Colorado  cases.) 

The  Future  of  Commercial  Enterprises 

In  the  introduction  to  this  chapter  it  is  stated  that  most 
of  the  early  commercial  irrigation  enterprises  were  financial 
failures.  With  but  a  few  exceptions,  commercial  enterprises  of 
the  first  two  groups  are  poor  investments  today.  As  previ- 
ously pointed  out,  only  enterprises  of  the  third  group — those 
selling  an  interest  in  the  system — when  part  of  a  land  project 
can  be  considered  as  having  possibilities  of  success.  It  must 
be  emphasized  that  the  lack  of  financial  security  is  not  due  to 
restrictive  legislation  or  the  lack  thereof.  It  is  due  to  the 
nature  of  the  business  itself.  Irrigated  agriculture  calls  for 
expenditures  by  the  farmer  in  the  preparation  of  his  land  not 
known  in  humid  sections.  He  must  be  carried  for  a  much 
longer  period  than  purchasers  of  farming  property  in  the  non- 


120  ELEMENTS     OF     WESTERN     WATER     LAW 

irrigated  zone.  When  we  realize,  also,  the  difficulty  in  finding 
purchasers  of  the  land  under  a  system,  we  can  appreciate  the 
long  period  through  which  a  system  must  be  maintained  and 
operated  by  the  holding  company  with  little  or  no  return. 

Regarding  the  abrogation  of  water  right  contracts,  as 
illustrated  by  Nebraska  case  of  the  McCook  Co.,  cited  above, 
the  company  is  often  assisted  in  securing  increased  mainte- 
nance and  operation  rates  by  the  public  service  commission. 
This  must  be  so,  as  the  annual  charge  was  generally  fixed  by 
contract  throughout  the  entire  west  at  $1.00  per  acre  per 
year — which  amount  is  entirely  too  low  for  the  ordinary  sys- 
tem. 

Many  of  the  commercial  enterprises  have  been  purchased 
and  included  in  projects  of  the  United  States  Reclamation 
Service.  Other  large  ones,  like  the  California  Development 
Co.,  have  been  taken  over  by  irrigation  districts.  It  is  certain 
that  the  next  irrigation  census  will  show  a  marked  decrease 
in  the  proportion  of  any  state's  total  irrigated  acreage  served 
by  such  enterprises. 

In  contrast,  is  the  growth  of  the  mutual  company.  As 
indicated,  the  commercial  enterprises  of  the  third  group  pass 
automatically  into  mutual  companies.  The  water  users'  asso- 
ciations formed  under  Reclamation  Service  projects  are  mutual 
companies  which  will  ultimately  operate  the  project.  Similar 
companies  are  formed  in  accordance  with  state  legislation 
under  the  Carey  act  projects.  The  mutual  company  is,  there- 
fore, destined  to  be  the  controlling  type  in  the  operation  of 
irrigation  works. 


CHAPTER   X 
THE  DESERT  LAND  ACT  AND  THE  CAREY  ACT 

When  the  arid  public  lands  were  first  occupied  and 
irrigated  there  was  no  act  providing  for  their  alienation  other 
than  the  homestead  and  pre-emption  acts,  both  passed  in  1862. 
The  first  act  to  specially  provide  for  the  conditions  of  the  irri- 
gation states  was  the  desert  land  act  of  March  3,  1877,  which, 
slightly  amended,  is  still  in  force.  The  only  public  land  and 
irrigation  states  in  which  the  act  is  not  operative  are  Kansas, 
Nebraska,  and  Oklahoma. 

Only  desert  lands  are  subject  to  entry  and  it  has  been 
held  that  the  following  lands  are  not  desert:  Lands  which 
produce  native  grasses  sufficient  to  make  an  ordinary  crop  of 
hay  in  usual  seasons;  lands  which  will,  without  irrigation, 
produce  a  reasonably  remunerative  crop  of  any  kind ;  lands 
bearing  a  natural  growth  of  trees. 

As  entry  may  be  made  by  any  citizen,  twenty-one  years 
of  age,  a  woman  married  or  single,  is  entitled  to  do  so.  Under 
the  original  act,  one  section,  or  640  acres,  was  the  limit  of 
entry,  but  by  the  act  of  March  3,  1891,  it  was  restricted  to  320 
acres. 

To  make  entry  an  application  must  be  filed  at  the  local 
land  office,  showing  that  applicant  is  a  citizen,  or  has  declared 
his  intention  to  become  such ;  that  he  is  21  years  of  age  or 
over;  that  he  is  a  bona  fide  resident  of  the  state  in  which  the 
land  lies;  that  he  has  not  previously  made  desert  land  entry 
or  taken  an  assignment  of  such ;  that  he  has  not  since  August 
30,  1890,  acquired  title  to  nor  is  claiming  under  any  of  the 
agricultural  lands  laws,  including  the  lands  applied  for,  lands 
which  in  the  aggregate  exceed  320  acres ;  and  that  he  intends 
to  reclaim  the  lands  described  in  the  application  through  irri- 
gation within  four  years. 

The- act  of  March  3,  1891,  provided  for  the  assignment  of 
the  entire  entry,  but  the  act  of  March  28,  1908,  allows  an 


122  ELEMENTS     OF    WESTERN     WATER     LAW 

assignment  in  whole  or  in  part — except  that  not  less  than  a 
40-acre  subdivision  can  be  assigned.  The  latter  act  forbids  the 
assignment  of  an  entry  to  a  corporation  or  an  association. 

With  the  application  a  map  must  be  filed  showing  the 
proposed  method  of  irrigating  the  land  described,  and  a  pay- 
ment of  25  cents  per  acre  must  be  made.  Before  the  end  of  each 
of  the  first  three  years  after  entry  proof  must  be  filed  at  the 
local  land  office  showing  the  expenditure  of  one  dollar  per  acre 
during  the  year.  This  "annual  proof"  must  be  sworn  to  and 
must  be  corroborated  by  the  affidavits  of  two  reputable  wit- 
nesses. Expenditures  for  ditches,  dams,  fences,  roads,  the  first 
breaking  of  the  soil,  barns  and  other  stock  buildings,  and  wells 
for  irrigation  purposes,  will  be  allowed.  Expenditures  for 
stock  in  an  irrigation  company  to  furnish  water  to  land  entered 
will  also  be  allowed. 

The  entryman,  or  his  assignee,  is  allowed  four  years  from 
date  of  entry  to  satisfy  the  requirements  of  the  act,  but  he  may 
make  final  proof  and  receive  patent  as  soon  as  he  has  expended 
three  dollars  per  acre,  has  reclaimed  all  the  irrigable  land 
included  in  his  entry,  and  has  cultivated  one-eighth  of  the 
entire  area  entered.  When  possible  under  the  state  laws,  the 
final  proof  must  show  an  absolute  water  right  for  the  irriga- 
tion of  the  land  entered.  Up  to  ten  years  ago  the  Department 
was  very  lax  in  passing  upon  final  proofs,  but  under  the  pres- 
ent regulations  a  rigid  examination  is  made  of  the  water  right 
and  the  extent  of  irrigation  and  cultivation.  At  the  time  of 
making  final  proof  a  payment  of  one  dollar  per  acre  must  be 
made.  Under  an  act  of  March  28,  1908,  the  four-year  period 
may  be  extended  for  an  additional  period  not  exceeding  three 
years  at  the  discretion  of  the  Land  Office. 

As  there  is  no  residence  requirement  in  the  desert  land  act 
other  than  to  reside  in  the  state  and  as  payment  for  the  land 
itself  is  only  $1.25  per  acre,  the  act  has  been  very  popular. 
In  the  past  many  irrigation  companies  secured  large  areas  of 
public  land  by  stipulating  with  entrymen  to  furnish  water 
right  and  take  in  return  one-half  or  more  of  the  land  entered. 
Such  contracts  were  illegal  and  under  the  present  vigilance 
are  not  tolerated.  It  is  allowable,  however,  in  contracting 
with  an  irrigation  company  for  a  water  right  for  a  desert  entry 
to  stipulate  that  on  default  of  the  specified  cash  payment  the 
entryman  shall  deed  to  the  company  a  portion,  or  all,  of  the 
land  entered.  It  is  evident  that  the  permissible  contract  may 
result  in  the  same  end  as  the  prohibited  contract,  but  on  its 
face  at  least,  it  is  not  an  agreement  to  convey. 


DESERT  LAND  AND  CAREY  ACTS         123 

The  Carey  Act 

In  the  last  chapter  reference  was  made  to  the  many 
failures  of  private  irrigation  companies  organized  to  irrigate 
public  land — the  principal  cause  for  which  being  the  inability 
of  the  company  to  restrain  "sooners"  or  mere  speculators  from 
entering  the  land,  and  to  secure  a  sufficient  lien,  upon  such 
land  as  subscribed  for  water  rights,  for  non-payment  of  annual 
charges.  To  relieve  this  situation  Congress  in  1894  passed  the 
so-called  "Carey  Act"  —  named  after  Senator  Carey  of  Wyo- 
ming, who  introduced  it. 

The  act  authorized  the  Secretary  of  the  Interior,  with  the 
approval  of  the  President,  to  contract  with  each  state  having 
desert  lands  for  the  free  grant  to  the  state  of  not  exceeding 
one  million  acres  of  such  lands  "as  the  state  may  cause  to  be 
irrigated,  reclaimed,  occupied,  and  not  less  than  twenty  acres 
of  each  one  hundred  and  sixty-acre  tract  cultivated  by  actual 
settlers,  within  ten  years  after  the  passage  of  this  act."  Before 
any  segregation  of  land  was  allowed,  the  state  had  to  file  a  map 
of  the  land  and  the  plan  proposed  for  its  irrigation.  As  satis- 
factory proof,  according  to  the  regulations  of  the  Secretary  of 
the  Interior,  was  made  by  the  state  "that  any  of  said  lands 
are  irrigated,  reclaimed,  and  occupied  by  actual  settlers,  pat- 
ents shall  be  issued  to  the  state  or  its  assigns  for  said  lands 
so  reclaimed  and  settled :  Provided,  That  said  states  shall  not 
sell  or  dispose  of  more  than  one  hundred  and  sixty  acres  of 
said  lands  to  any  one  person." 

The  original  act  was  a  great  step  in  advance  in  that  it 
allowed  the  segregation  of  all  the  public  lands  under  an  irriga- 
tion project  and  thus  precluded  the  earlier  type  of  speculator, 
but  it  failed  to  provide  for  a  lien  in  case  of  non-payment  of 
water  right  charges.  The  act  of  June  11,  1896,  met  this  need 
by  authorizing  liens  to  be  created  by  the  state  for  the  actual 
cost  of  reclamation  and  reasonable  interest,  and  by  providing 
that  patents  shall  issue  to  the  state,  without  regard  to  settle- 
ment or  cultivation,  as  soon  as  a  proper  irrigation  system  and 
ample  water  supply  are  furnished.  It  is  specifically  provided 
in  this  amendatory  act  that  the  United  States  shall  in  no  way 
be  liable  for  such  lien,  or  any  part  thereof. 

As  stated  above,  the  original  act  provided  that  the  lands 
segregated  must  be  reclaimed  as  specified  within  ten  years 
after  the  passage  of  the  act.  No  change  was  made  in  this 
severe  requirement  until  the  act  of  March  3,  1901,  which  pro- 
vided that  the  ten  years'  period  "shall  begin  to  run  from  the 
date  of  approval  by  the  Secretary  of  the  Interior  of  the  state's 
application  for  the  segregation  of  such  lands."  It  further 


124  ELEMENTS     OF     WESTERN     WATER     LAW 

authorizes  the  Secretary  of  the  Interior  in  his  discretion  to 
grant  an  extension  not  exceeding  five  years. 

The  original  act  applied  only  to  states.  The  act  of  Feb- 
ruary 18,  1909,  extended  the  provisions  of  the  act  to  the  terri- 
tories of  Arizona  and  New  Mexico.  The  act  of  March  15, 
1910,  authorized  the  Secretary  of  the  Interior  to  temporarily 
withdraw  from  entry  areas  embracing  lands  for  which  a  state 
proposes  to  make  application,  pending  the  investigation  and 
survey  preliminary  to  the  filing  of  the  regular  application  for 
the  segregation. 

The  Secretary  of  the  Interior  has  prepared  regulations 
which  must  be  followed  by  the  states  in  making  Carey  act 
segregations.  No  segregation  is  now  approved  until  examined 
on  the  ground  and  reported  favorably  by  a  government  engi- 
neer. This  course  has  been  criticized  by  some  as  reflecting 
upon  the  states,  but  as  the  government  is  the  owner  of  the 
land  it  should  not  be  asked  to  grant  such  until  all  the  condi- 
tions precedent  thereto  have  been  fulfilled  to  the  satisfaction 
of  its  representatives.  The  following  statement  from  the 
annual  report  of  the  Commissioner  of  the  General  Land  Office 
for  1911  is  in  point: 

The  importance  of  this  (the  examination  of  projects)  can  not  be 
overstated,  for  not  only  will  the  lands  remain  segregated  for  a  long 
period  of  time,  if  the  order  therefor  is  once  made,  but  in  making  such 
segregation  the  department  is  practically  committed  to  the  feasibility 
of  the  proposition  submitted  by  the  state,  and  people  thereafter  dealing 
with  the  state  are  in  a  great  degree  entitled  to  regard  the  proposition 
of  the  state  as  having  received  the  endorsement  of  the  Department. 

State  Legislation 

The  provisions  of  the  Carey  act  have  been  accepted  by 
Arizona,  California,  Colorado,  Idaho,  Montana,  Nevada,  New 
Mexico,  Oregon,  South  Dakota,  Utah,  Washington  and  Wyo- 
ming. Idaho  and  Wyoming  were  especially  active  in  prepar- 
ing for  development  under  the  Carey  act.  There  was  close 
co-operation  between  the  officials  of  the  two  states  and  their 
original  legislation  in  this  regard  was  practically  the  same, 
and,  as  amended  from  time  to  time,  has  served  as  a  model  for 
the  other  states. 

Under  the  special  state  legislation,  the  operation  of  the 
Carey  act  as  far  as  the  state  is  concerned  is  entrusted  to  a 
board.  The  irrigation  project  is  not  constructed  by  the  state, 
but  by  an  individual,  association  or  company  contracting  with 
the  state  through  the  board.  To  initiate  the  enterprise,  the 
contractor  files  with  the  board  a  request  for  the  withdrawal  or 
segregation  of  the  desired  tract  of  desert  public  land  and  a 


DESERT  LAND  AND  CAREY  ACTS         125 

proposal  to  construct  the  irrigation  system,  stating  the  source 
of  water  supply,  the  location  and  dimensions  of  the  proposed 
works,  the  estimated  cost  of  construction,  and  the  price  and 
terms  at  which  perpetual  water  rights  will  be  sold.  The 
request  must  be  accompanied  by  a  certificate  of  the  state  engi- 
neer showing  that  the  contractor  has  made  proper  application 
to  appropriate  the  necessary  water.  A  certified  check  of  speci- 
fied amount  must  be  deposited  with  the  board  as  a  guarantee 
that  the  contractor  will  execute  a  contract  with  the  state  in 
case  the  segregation  is  made. 

The  state  engineer  is  required  to  report  on  the  feasibility 
of  the  scheme,  and  if  his  report  be  favorable  the  board  applies 
to  the  Secretary  of  the  Interior  for  the  segregation  of  the 
desired  tract.  If  granted,  the  board  and  the  contractor  execute 
an  agreement  which  includes  complete  plans  and  specifications 
regarding  the  execution  of  the  proposed  work,  and  specifies 
the  price,  terms,  and  conditions  under  which  water  rights 
(carrying  a  proportional  part  of  the  system)  will  be  sold  to 
settlers.  The  contractor  must  furnish  a  bond,  of  amount  pre- 
scribed by  statute  or  regulation  of  board,  as  a  guaranty  of 
faithful  performance  of  contract. 

As  soon  as  the  segregation  has  been  made  and  work 
initiated  by  the  contractor  on  a  proper  basis,  the  board  must 
publish  notice  stating  that  the  lands  segregated  are  open  for 
settlement  and  the  price  which  must  be  paid  to  the  state  for 
the  land  and  to  the  contractor  for  the  water  right.  Any  one 
intending  to  settle  within  the  project  must  first  execute  a 
water  right  contract  with  the  contractor  for  the  tract  upon 
which  he  intends  to  file.  He  then  applies  to  the  board  for  the 
tract,  and  if  successful  secures  a  certificate  of  location  on  pay- 
ment of  one-half  the  price  of  the  land  fixed  by  the  state.  He 
must  establish  his  residence  on  the  tract  within  six  months 
after  water  is  ready  for  delivery  and  must  cultivate  at  least 
one-sixteenth  of  the  land  entered  during  the  first  year  and  at 
least  one-eighth  during  the  second  year.  He  must  make  final 
proof  within  three  years  and  complete  his  payment  to  the  state. 
The  latter  payment  is  generally  only  fifty  cents — twenty-five 
cents  to  be  paid  on  entry  and  twenty-five  cents  on  final  proof. 
The  statutes  provide  for  the  control  of  the  system  being  given 
to  the  water  users  thereunder,  but  the  condition  precedent 
thereto  varies  greatly.  Idaho  gives  control  when  35  per  cent 
of  the  total  lien  has  been  satisfied,  while  South  Dakota  leaves 
the  control  with  the  contractor  until  90  per  cent  of  the  land 
has  been  sold.  In  Oregon  the  system  must  be  turned  over  to 
the  settlers  within  ten  years. 


126 


ELEMENTS     OF     WESTERN     WATER     LAW 


Development  under  the  Carey  Act 

The  report  of  the  Commissioner  of  the  General  Land 
Office  for  the  year  ending  June  30,  1916,  gives  the  following 
statistics  in  regard  to  the  Carey  Act. 


State. 


Area 

segregated 
acres. 


Arizona  

Colorado  284,564 

Idaho  1,306,843 

Montana  228,974 

Nevada  36,809 
New  Mexico    7,565 

Oregon  357,879 

Utah  141,815 

Wyoming  1,343,829 

Total  3,708,367 


Area 

patented  to 
states,  acres. 


516,086 
30,684 


62,718 
151,968 
761,455 


Area  for  which       Area  temporarily 
time  to  reclaim  withdrawn 

extended         for  investigation 
acres.        under  the  act  of  1910. 


54,116 
62,585 


98,746 
210,758 
426,205 


32,630 

106,021 

19,107 

30,400 

75,498 

62,637 

1,781 

328,075 


In  addition,  3,302,662  acres  for  which  applications  had 
been  made  had  been  rejected  or  relinquished.  The  area  pat- 
ented to  the  states  was  4,244  acres  in  1914,  146,079  acres  in 
1915,  160,741  acres  in  1916. 

Under  the  amendment  of  1910,  permitting  temporary 
withdrawals  of  land  during  its  investigation,  to  June  30,  1916, 
4,846,355  acres  had  been  applied  for,  2,285,702  had  been 
rejected  before  withdrawals,  2,490,430  acres  withdrawn, 
2,162,355  acres  restored,  and  328,075  acres  remained  with- 
drawn. 

Colorado 

Only  one  project,  covering  20,000  acres,  has  been  com- 
pleted and  is  in  use.  Of  the  others  for  which  segregations 
were  made,  some  have  been  allowed  to  lapse  or  have  been  can- 
celled, those  remaining  have  made  little  prograss  in  actual 
construction  during  the  last  two  years. 

Idaho 

The  thirty  projects  in  Idaho,  listed  in  the  1916  report  of 
the  State  Land  Department,  had  a  total  area  of  1,863,000  acres, 
of  which  747,000  acres  had  been  sold  and  124,000  acres  were 
open  to  entry.  The  total  final  cost  of  these  systems  was  esti- 
mated as  $54,000,000,  of  which  $24,000,000  was  reported  as 
having  been  spent.  The  cost  per  acre  of  water  rights  varied 
generally  from  $25  to  $65.  Over  one-half  of  these  areas  are 
located  in  the  vicinity  of  Twin  Falls. 


DESERT     LAND     AND     CAREY     ACTS  127 

Montana 

In  1916  there  were  173,000  acres  in  projects  under  way. 
The  state  had  approved  sales  for  50,000  acres,  the  United 
States  had  issued  patents  to  the  state  for  21,000  acres  of  this 
and  the  state  had  actually  issued  patents  to  settlers  for  11,000 
acres.  Of  the  six  active  projects,  three  were  completed  and 
supplying  land. 

Nevada 

During  1915-16,  temporary  withdrawals  were  allowed  for 
three  small  projects.  Although  37,000  acres  had  been  segre- 
gated, no  land  had  been  patented  to  the  state  to  June  30,  1916. 

Oregon 

In  1916,  five  Carey  Act  projects  covering  about  200,000 
acres  of  irrigable  land  were  under  construction.  One  of  these, 
the  Tumalo  project,  was  taken  over  and  completed  by  the 
state  at  an  expenditure  of  $450,000.  About  22,000  acres  of  the 
Carey  Act  and  private  lands  are  included.  Of  the  Carey  Act 
lands  in  the  Tumalo  project  about  7,500  acres  have  been  listed 
for  patent  and  2,400  acres  actually  deeded.  About  6,000  acres 
were  irrigated  in  1916. 

Utah 

In  November,  1916,  there  were  27,000  acres  of  Carey  Act 
entries  in  force.  This  is  all  within  one  project.  The  state  had 
issued  patent  lists  covering  26,000  acres  which  had  not  been 
approved  by  the  General  Land  Office.  On  other  proposed 
projects  little  progress  had  been  made. 

Wyoming 

To  December,  1916,  137,000  acres  had  been  covered  by 
settlers'  filings  and  patents  had  been  issued  to  settlers  for 
104,000  acres.  Segregations  had  been  made  for  46  systems, 
patents  to  settlers  had  been  issued  under  eighteen  projects. 
The  authorized  maximum  selling  price  of  water  rights  varied 
from  $30  to  $50  in  most  of  these  systems.  The  period  since 
1911  has  been  mainly  one  of  reorganization  and  readjustment 
of  conditions,  particularly  financial,  in  projects  previously 
undertaken,  rather  than  one  of  new  systems.  The  projects  on 
which  lands  have  been  patented  have  an  average  size  of  about 
10,000  acres  each,  the  largest  area  patented  to  the  state  in  any 
one  project  being  about  20,000  acres. 


CHAPTER  XI 
THE  RECLAMATION  ACT 

In  the  case  of  United  States  v.  Hanson  (167  Fed.  881), 
the  United  States  Circuit  Court  of  Appeals  thus  expressed 
itself  regarding  the  need  for  the  Reclamation  act: 

Congress  passed  the  Reclamation  act  to  make  marketable  and 
habitable  large  areas  of  desert  land  within  the  public  domain,  which 
lands  are  valueless  and  uninhabitable  unless  reclaimed  by  irrigation 
and  the  irrigation  whereof  is  impracticable  except  upon  expenditure 
of  large  sums  of  money  in  the  construction  of  a  system  of  reservoirs 
and  distributing  canals.  All  previous  efforts  of  the  government  to 
make  these  arid  lands  available  for  settlement  had  resulted  in  failure. 
By  the  Desert  Land  act  of  March  3,  1875,  Congress  has  made  provision 
for  their  use  by  individual  settlers,  and  on  March  3,  1877,  had  enacted 
further  legislation  to  facilitate  the  reclamation  of  such  lands  by  private 
entrymen,  and  in  1894,  to  provide  for  the  irrigation  of  the  arid  public 
lands,  had  passed  the  Carey  act,  by  which  it  proposed  to  donate  to  the 
states  in  which  such  lands  were  located,  so  much  thereof,  not  exceed- 
ing one  million  acres  in  each  state,  as  the  state  would  cause  to  be 
reclaimed.  These  efforts  having  failed  to  accomplish  the  desired  end, 
the  Reclamation  act  was  passed. 

Although  the  above  statement  may  be  considered  entirely 
too  strong  by  many  who  have  watched  the  development  under 
the  Carey  act,  it  is  certain  that  the  many  western  societies 
interested  in  irrigation  labored  for  years  to  secure  the  passage 
of  some  act  under  which  the  nation  itself  would  do  the  actual 
construction  work  in  connection  with  storage  and  diversion 
projects.  After  many  unsuccessful  attempts,  the  Reclamation 
act  was  finally  passed  on  June  17,  1902. 

The  Reclamation  Act  of  June  17,  1902 

The  act  creates  a  fund  known  as  the  "Reclamation  Fund" 
from  the  moneys  received  from  the  sale  of  public  lands  in  the 
following  western  states:  Arizona,  California,  Colorado, 
Idado,  Kansas,  Montana,  Nebraska,  Nevada,  New  Mexico, 
North  Dakota,  Oklahoma,  Oregon,  South  Dakota,  Utah, 

128 


THE     RECLAMATION     ACT  129 

Washington,  and  Wyoming.  As  the  public  lands  in  Texas 
belong  to  the  state,  the  original  act  did  not  include  Texas,  but 
its  provisions  were  later  extended  to  Texas  by  special  congres- 
sional and  state  legislation.  In  1910,  Congress  authorized  a 
special  bond  issue  of  $20,000,000,  to  be  used  exclusively  for  the 
completion  of  projects  then  initiated. 

The  Secretary  of  the  Interior  is  authorized  to  do  the  many 
things  provided  for  in  the  act.  In  connection  with  the  devel- 
opment of  any  project  he  must  withdraw  from  public  entry 
the  lands  required  for  the  irrigation  works,  and  also  must  with- 
draw from  all  entry,  except  under  the  Homestead  laws,  the 
lands  deemed  irrigable  under  the  proposed  project.  If  later 
the  project  is  held  to  be  not  feasible,  the  lands  so  withdrawn 
are  to  be  restored  to  entry.  The  two  withdrawals  mentioned 
above  were  originally  called  first  form  withdrawal  and  second 
form  withdrawal.  As  the  irrigable  lands  could  be  entered 
under  the  Homestead  act,  although  subject  to  all  the  limita- 
tions and  conditions  of  the  Reclamation  act,  they  were  settled 
upon  in  many  cases  just  as  soon  as  it  was  known  that  a  Re- 
clamation project  was  proposed.  As  the  project  had  not  been 
sufficiently  developed  for  the  Land  Office  to  know  what  lands 
would  be  irrigated,  much  land  was  occupied  above  the  canal 
lines.  Furthermore,  as  the  project  was  slowly  developed  and 
as  the  settlers  had  few  means  of  making  a  livelihood,  there 
was  much  dissatisfaction.  This  difficulty  was  removed  in  the 
later  projects  by  the  Secretary  of  the  Interior  withdrawing  all 
lands  under  the  first  form.  There  was  some  question  as  to  the 
legal  power  of  the  Secretary  to  withdraw  irrigable  lands  under 
the  first  form  and  the  doubt  was  removed  by  a  congressional 
act  in  1910.  By  an  amendatory  act  approved  February  18, 
1911,  it  is  provided  that  no  entry  shall  be  made  and  no  entry- 
man  shall  be  permitted  to  go  upon  lands  reserved  for  irrigation 
purposes  until  the  Secretary  of  the  Interior  has  established  the 
unit  of  acreage,  fixed  the  water  right  charges  and  the  date 
when  water  will  be  delivered. 

As  soon  as  a  project  is  found  practicable  and  contracts 
have  been  let,  the  act  provides  that  the  Secretary  "shall  give 
public  notice  of  the  lands  irrigable  under  such  project,  and 
limit  of  area  per  entry,  which  limit  shall  represent  the  acreage 
which,  i-n  the  opinion  of  the  Secretary,  may  be  reasonably 
required  for  the  support  of  a  family  upon  the  lands  in  ques- 
tion; also  the  charges  which  shall  be  made  per  acre  upon  the 
said  entry,  and  upon  the  lands  in  private  ownership  which  may 
be  irrigated  by  the  waters  of  said  irrigation  project,  and  the 
number  of  annual  installments,  not  exceeding  ten,  in  which 


130  ELEMENTS     OF     WESTERN     WATER     LAW 

such  charges  shall  be  paid  and  the  time  at  which  such  pay- 
ments shall  commence."  The  charges  announced  by  the  Sec- 
retary in  the  public  notice  are  determined  with  a  view  of 
returning  to  the  fund  the  cost  of  the  project  and  in  practice 
are  apportioned  equally  throughout  the  project.  (See  Reclam- 
ation Extension  Act.) 

The  public  lands  subject  to  entry  can  be  entered  only 
under  the  provisions  of  the  Homestead  act  in  tracts  of  not  less 
than  ten  nor  more  than  one  hundred  and  sixty  acres.  The 
entry  is  subject  to  the  limitations  and  conditions  of  the  Rec- 
lamation act  and  the  commutation  provisions  of  the  Home- 
stead act  do  not  apply.  The  original  act  placed  the  minimum 
area  at  forty  acres.  Before  receiving  patent  the  entryman 
must  reclaim  at  least  one-half  of  the  total  irrigable  area  of  his 
entry  and  must  pay  the  charges  apportioned  against  the  land 
entered.  (Requirements  changed  by  act  of  August  9,  1912, 
and  act  of  August  13,  1914.) 

Although  private  lands  may  be  included  within  the  pro- 
ject, no  water  right  for  such  lands  can  be  sold  for  a  tract  ex- 
ceeding 160  acres  to  any  one  landowner,  "and  no  such  sale 
shall  be  made  to  any  landowner  unless  he  be  an  actual  bona 
fide  resident  on  such  land  or  occupant  thereof  residing  in  the 
neighborhood  of  said  land,  and  no  such  right  shall  perma- 
nently attach  until  all  payments  therefor  are  made."  The 
Secretary  has  fixed  a  limit  of  residence  in  the  neighborhood 
at  a  maximum  of  fifty  miles.  This  limit  of  distance  may  be 
varied,  depending  upon  local  conditions.  After  water-right 
application  has  been  made  and  accepted  (which  constitutes 
a  water-right  contract),  the  applicant  is  not  required  to  con- 
tinue his  residence  on  the  land  or  in  the  neighborhood.  It  was 
formerly  held  that  a  corporation  was  entitled  to  hold  land 
under  a  government  project,  but,  as  a  condition  precedent 
thereto,  a  showing  had  to  be  made  that  the  aggregate  area  held 
by  the  corporation  and  its  stockholders  in  their  individual 
capacities  did  not  exceed  one  hundred  and  sixty  acres.  By 
departmental  order  of  July  11,  1913,  the  policy  was  changed 
and  no  application  for  a  water  right  by  a  corporation  will  now 
be  accepted. 

The  Secretary  is  authorized  to  use  the  Reclamation  Fund 
for  the  operation  and  maintenance  of  reservoirs  and  irrigation 
works.  When  the  payments  required  by  the  act  are  made 
for  the  major  portion  of  the  lands  irrigated,  the  management 
and  operation  of  the  irrigation  works  is  to  pass  to  the  land- 
owners thereunder  to  be  maintained  at  their  expense  under 
some  form  of  organization  acceptable  to  the  Secretary;  but 


THE     RECLAMATION     ACT  131 

"the  title  to  and  the  management  and  operation  of  the  reser- 
voirs and  the  work  necessary  for  their  protection  and  opera- 
tion shall  remain  in  the  Government  until  otherwise  provided 
by  Congress."  It  is  noteworthy  that  the  act  does  not  specify 
that  the  title  to  the  irrigation  works  shall  pass  to  the  land- 
owners. The  only  inference,  therefore,  is  that  the  title  to  the 
works,  as  well  as  reservoirs,  is  to  remain  in  the  Government. 

As  in  a  number  of  other  congressional  acts,  it  is  expressly 
.stated  in  this  act  that  it  shall  not  be  construed  as  interfering 
with  state  or  territorial  laws  regarding  the  appropriation,  use 
or  distribution  of  water  used  in  irrigation,  or  as  in  any  way 
affecting  any  right  to  the  waters  of  an  interstate  stream.  The 
Secretary  is  directed  to  proceed  in  conformity  with  the  local 
laws. 

The  doctrine  of  appurtenancy  is  included  in  the  following 
language : 

Provided,  That  the  right  to  the  use  of  water  acquired  under  the 
provisions  of  this  act  shall  be  appurtenant  to  the  land  irrigated,  and 
beneficial  use  shall  be  the  basis,  the  measure,  and  the  limit  of  the 
right. 

The  original  act  provided  that  within  each  ten-year  period 
the  major  portion  of  the  funds  arising  from  the  sale  of  public 
lands  within  any  state  or  territory  should  be  expended  within 
the  limits  thereof.  The  section  so  providing  was  repealed  by 
Congress  in  1910,  so  that  the  Secretary  is  now  at  liberty  to 
expend  moneys  on  feasible  projects  regardless  of  the  geo- 
graphical source  of  such. 

As  stated  above,  the  operations  under  the  Reclamation 
act  are  under  the  Secretary  of  the  Interior.  Prior  to  the  pas- 
sage of  the  act  in  1902,  the  Hydrographic  Division  of  the 
Geological  Survey  had  been  making  surveys  of  reservoir  sites 
and  proposed  canals  in  many  of  the  western  states.  After  the 
passage,  this  Division  became  the  Reclamation  Service  under 
the  supervision  of  the  Director  of  the  Geological  Survey. 
In  1906,  the  Service  was  made  a  separate  bureau  of  equal 
standing  with  the  Geological  Survey  and  with  its  own  director. 

One  of  the  first  projects  undertaken  was  the  Salt  River 
project  made  up  of  lands  about  Phoenix,  in  Arizona.  As  prac- 
tically all  the  lands  included  were  in  private  ownership,  the 
question  immediately  arose  as  to  what  lien  should  be  given  the 
government  to  induce  it  to  build  the  project.  The  lien  in  the 
case  of  public  land  is  assured,  as  the  title  can  not  pass  until 
all  the  water  right  payments  have  been  made.  To  satisfy  the 
requirement  in  regard  to  the  private  lands,  the  first  so-called 
Water  Users'  Association  was  formed.  The  shareholders  of 


132  ELEMENTS     OF     WESTERN     WATER     LAW 

this  association,  which  is  regularly  incorporated,  are  the  land- 
owners under  the  project.  The  capital  stock  is  fixed  at  the 
estimated  cost  of  the  project  and  each  acre  is  entitled  to  one 
share  of  stock.  The  association  enters  into  a  contract  with 
the  Secretary  of  the  Interior  pledging  itself  to  repay  the  cost 
of  construction.  Each  shareholder  in  executing  his  stock  sub- 
scription agrees  that  the  payments  due  upon  his  stock  shall 
be  a  lien  upon  his  land  and  shares,  and  that  the  lien  may  be 
enforced  by  the  association  by  foreclosure  in  the  manner  pro- 
vided by  law  for  the  foreclosure  of  mortgages.  The  land  is 
thus  bound  to  the  association  and  the  association  to  the  Sec- 
retary. Although  not  necessary  so  far  as  the  lien  is  concerned, 
the  practice  has  been  to  compel  entrymen  on  the  public  lands 
to  become  stockholders  in  the  association.  The  association 
levies  assessments  on  the  shares  of  stock  from  year  to  year 
to  pay  the  installments. 
Act  of  August  9,  1912 

The  Act  of  August  9,  1912,  provides  that  one  making  a 
homestead  entry  within  a  project  may  secure  a  patent  after 
submitting  satisfactory  proof  showing  compliance  with  the 
provisions  of  law  as  to  residence,  reclamation  and  cultivation. 
It  likewise  provides  that  a  holder  of  water-right  certificate 
on  a  project  shall  be  entitled  to  final  water-right  certificate 
upon  proof  of  cultivation  and  reclamation.  No  such  patent 
,or  certificate  shall  issue  until  all  sums  due  the  United  States, 
on  account  of  such  land  or  water  right,  at  the  time  of  issuance 
of  patent  or  certificate  have  been  paid.  Every  patent  or  water- 
right  certificate  shall  reserve  to  the  United  States  a  prior  lien 
on  the  land  for  the  payment  of  all  sums  due  or  to  become  due 
to  the  United  States. 

Another  important  provision  of  this  act  is  that  the  Secre- 
tary of  the  Interior  is  authorized  to  designate  a  fiscal  agent  or 
officer  of  the  Reclamation  Service  to  whom  shall  be  paid  the 
sums  due  on  reclamation  entries  or  water  rights.  Before  the 
passage  of  this  act  it  was  necessary  to  make  such  payments 
to  the  land  office  of  the  district  in  which  the  project  was  sit- 
uated. As  such  office  is  generally  located  at  some  point  dis- 
tant from  the  project,  the  requirement  necessitated  much 
trouble  which  is  now  obviated. 
Reclamation  Extension  Act  of  August  13,  1914 

The  Reclamation  Extension  act  is  by  far  the  most  impor- 
tant of  the  amendments  to  the  Reclamation  act.  Section  one 
provides  that  any  person  making  entry  or  water-right  appli- 
cation after  the  passage  of  the  act  shall  pay  five  per  cent  of 
the  construction  charge  as  an  initial  installment,  and  shall  pay 


THE     RECLAMATION     ACT  133 

the  balance  in  fifteen  annual  installments,  the  first  five  of 
which  shall  each  be  five  per  cent  of  the  construction  charge 
and  the  remainder  shall  each  be  seven  per  cent.  The  first  of 
the  annual  installments  shall  be  due  on  December  first  of  the 
fifth  calendar  year  after  the  initial  installment.  Section  two 
provides  that  any  person  whose  land  or  entry  has  previously 
become  subject  to  the  Reclamation  act  shall  pay  the  construc- 
tion charge,  or  the  portion  thereof  remaining  unpaid,  in  twenty 
annual  installments.  The  first  four  of  such  installments  shall 
each  be  two  per  cent,  the  next  two  installments  each  four  per 
cent,  and  the  next  fourteen  installments  each  six  per  cent. 

Section  five  deals  with  the  operation  and  maintenance 
charge  which  must  be  paid  in  addition  to  the  installment  of 
the  construction  charge.  Such  charge  shall  be  made  for  each 
acre-foot  of  water  delivered ;  but  each  acre  of  irrigable  land, 
whether  irrigated  or  not,  shall  be  charged  with  a  minimum 
operation  and  maintenance  charge  based  upon  the  charge  for 
delivery  of  not  less  than  one  acre-foot  of  water.  The  Secretary 
is  authorized,  in  his  discretion,  to  transfer  "the  care,  operation, 
and  maintenance  of  all  or  any  part  of  the  project  works"  to  a 
water  users'  association  or  irrigation  district,  under  the  pro- 
ject, upon  request  of  such  association  or  district.  On  Novem- 
ber 1,  1917,  the  operation  and  maintenance  of  the  Salt  River 
project,  Arizona,  was  turned  over  to  the  Salt  River  Water 
Users'  Association.  It  is  now  estimated  that  the  returns 
from  the  leasing  of  power  on  that  project  will  be  sufficient  to 
pay  the  construction  installments.  Early  in  1917,  the  Mini- 
doka  Irrigation  District  took  over  the  operation  and  mainte- 
nance of  the  North  Side  Minidoka  project. 

By  the  provisions  of  section  seven,  the  Secretary  is 
authorized  to  appoint  the  water  users'  association  or  irrigation 
district,  under  any  project,  as  the  fiscal  agent  of  the  United 
States  to  collect  the  annual  payments  on  the  construction 
charge  and  the  annual  charges  for  operation  and  maintenance. 

Section  eight  authorizes  the  Secretary  to  make  general 
rules  and  regulations  governing  the  use  of  water  within  a 
project.  He  may  require  the  cultivation  and  reclamation  of 
one-fourth  the  irrigable  area  under  each  water-right  applica- 
tion or  entry  within  three  full  seasons  after  filing  application 
or  entry,  and  the  cultivation  and  reclamation  of  one-half  said 
area  within  five  full  seasons. 

Section  nine  provides  that  where  application  for  water 
right  for  lands  in  private  ownership  or  lands  under  entries 
not  subject  to  the  Reclamation  act  shall  not  be  made  within 
one  year  after  passage  of  this  act — or  in  cases  where  public 


134  ELEMENTS      OF     WESTERN     WATER     LAW 

notice  has  not  been  issued,  within  one  year  of  issuance 
thereof — ,  the  construction  charges  for  such  land  shall  be 
increased  five  per  cent  per  year  until  such  application  is  made. 

Section  twelve  provides  that  before  any  contract  is  let  or 
any  construction  work  begun  on  any  project  adopted  after  the 
passage  of  the  act,  the  Secretary  shall  require  the  owners  of 
private  land  thereunder  to  agree  to  dispose  of  all  lands  in 
excess  of  the  farm  unit,  upon  such  terms  and  at  not  to  exceed 
such  price  as  the  Secretary  may  designate.  In  case  of  refusal 
by  a  landowner  to  agree  to  such  requirements,  his  land  shall 
not  be  included  within  the  project.  As  previously  stated,  the 
water  users'  association  was  the  means  of  "tying"  land  in 
private  ownership  to  the  project.  Each  landowner  subscribed 
for  stock  in  the  association  for  all  of  his  land  within  the 
project.  If  he  had  over  160  acres,  he  executed  an  "excess 
lands"  contract  authorizing  the  association  to  sell  the  excess 
at  public  auction  if  he  had  not  disposed  of  it  to  persons  quali- 
fied to  hold  under  the  act  by  the  time  water  was  ready  for 
delivery  on  the  project.  By  the  terms  of  section  twelve,  the 
landowner  contracts  directly  with  the  Secretary  and,  further, 
binds  himself  to  maximum  price  and  terms  of  sale. 

Section  sixteen  provides  that  after  July  1,  1915,  "expendi- 
tures shall  not  be  made  for  carrying  out  the  purposes  of  the 
reclamation  law  except  out  of  appropriations  made  annually 
by  Congress  therefor" — such  appropriations  to  be  paid  out  of 
the  reclamation  fund.  Prior  to  the  passage  of  the  act,  the 
Secretary  had  full  power  to  make  allotments  regarding  expen- 
ditures for  projects. 

Judicial  Construction  of  Reclamation  Act 

As  was  to  be  expected  where  the  operations  are  of  such 
magnitude  and  cover  so  much  territory,  the  constitutionality 
of  the  Reclamation  act  was  early  attacked,  but  thus  far  it  has 
been  upheld  (United  States  v.  Hanson,  167  Fed.  881 ;  Burley  v. 
United  States,  179  Fed.  1).  In  a  former  chapter,  the  Kansas  v. 
Colorado  case  was  discussed,  and  it  was  stated  that  many  at 
first  supposed  that  the  Reclamation  act  was  therein  declared 
unconstitutional.  The  point  made  by  the  Court,  however, 
was  that  congress  could  not  override  state  legislation  in  regard 
to  the  reclamation  of  arid  lands,  and  the  Supreme  Court  went 
on  to  show  that  the  Reclamation  act  not  only  did  not  do  so, 
but  specifically  provided  for  the  observance  of  local  law.  In 
the  paragraph  of  the  decision  showing  the  power  of  the  gov- 
ernment to  reclaim  lands,  emphasis  is  laid  upon  the  reclama- 
tion of  lands  within  the  territories  and  upon  the  reclamation 
of  public  lands  within  the  states.  In  the  two  cases  cited 


THE     RECLAMATION     ACT  135 

above  as  upholding  the  constitutionality  of  the  Reclamation 
act,  the  question  of  the  power  of  the  Reclamation  Service  to 
build  projects  for  the  irrigation  of  private  lands  only,  within 
a  state,  was  not  raised.  In  the  second  of  the  two  cases  (Burley 
v.  United  States,  179  Fed.  1)  the  Court  said: 

It  would  be  strange  if  the  national  government  could  enter  the 
territory  of  a  state  where  there  were  no  public  lands  of  the  United 
States  requiring  irrigation  and  no  public  lands  through  which  water 
flows  necessary  for  the  irrigation  of  arid  lands,  and  by  legislation  pro- 
vide a  system  of  irrigation  for  the  private  lands  within  the  state  and 
control  its  administration.  It  would,  indeed,  be  a  strange  proceeding, 
and  obviously  wholly  outside  of  the  authority  of  Congress. 

But  in  this  case  the  United  States  is  the  owner  of  large  tracts  of 
land  within  the  states  named  in  the  act  of  June  17,  1902.  The  public 
welfare  requires  that  these  lands,  as  well  as  those  held  in  private 
ownership,  should  be  reclaimed  and  made  productive.  To  do  this 
effectively  and  economically  with  the  available  water  supply  large 
tracts  must  be  brought  into  relation  with  a  single  system  or  project. 
These  states  having  arid  lands  have  accordingly  acted  upon  the 
subject. 

Section  four  of  the  original  Reclamation  act,  regarding 
the  charges  to  be  paid,  contained  the  following:  "The  said 
charges  shall  be  determined  with  a  view  of  returning  to  the 
reclamation  fund  the  estimated  cost  of  construction  of  the 
project.  *  *  *."  It  was  accordingly  argued  that  the  act  did 
not  contemplate  the  payment  of  an  operation  and  maintenance 
charge  by  the  water  user — that  such  charge  was  to  be  borne 
by  the  government  without  reimbursement.  The  direct  ques- 
tion was  presented  in  Swigart  v.  Baker  (229  U.  S.  187),  and 
the  United  States  Supreme  Court  therein  held  that  the  opera- 
tion and  maintenance  charge  was  a  necessary  part  of  the 
construction  charge  and  must  be  paid  by  the  water  user. 

Development  Under  the  Reclamation  Act 

The  net  investment  in  the  twenty-seven  projects  under 
the  Reclamation  act  to  June  30,  1916,  was  $100,999,960.  The 
total  allotment  from  both  the  reclamation  fund  and  the 
$20,000,000  bond  issue  for  the  twenty-seven  projects  to  June 
30,  1916,  was  $124,255,130.  Of  this  total  amount,  $14,042,000 
was  allotted  to  the  Salt  River  project,  Arizona,  $13,445,643  to 
the  Boise  project,  Idaho,  $10,464,535  to  the  Yakima  project, 
Washington,  and  $9,363,815  to  the  Yuma  project,  Arizona  and 
California. 

The  charges  against  the  lands  under  the  project  are 
divided  into  "construction  charges"  and  "operation  and  main- 
tenance charges."  The  aggregate  return  for  the  "construction 
charges"  to  June  30,  1916,  was  $4,146,630,  and  for  the  "opera- 


136  ELEMENTS     OF     WESTERN     WATER     LAW 

tion  and  maintenance  charges,"  $2,448,095.  A  number  of  pro- 
jects have  not  yet  been  completed  and  water  has  been  distrib- 
uted by  the  part  of  the  system  in  operation  under  temporary 
water  rental  contracts.  The  total  of  such  rentals  to  June  30, 
1916,  was  $3,330,320. 

The  area  of  land  to  which  water  could  be  supplied  by  the 
projects  on  June  30,  1916,  was  1,680,756  acres,  and  the  total 
area  under  the  projects  was  3,115,624  acres.  The  project  crop 
reports  for  1915  cover  1,330,222  acres  of  irrigable  land,  of 
which  814,906  acres  were  irrigated  and  757,613  acres  were 
cropped.  The  total  value  of  crops  (1915)  was  $18,164,452.  Of 
this  total  amount  the  value  of  crops  on  the  Salt  River  project, 
Arizona,  was  $3,661,769;  on  the  Sunnyside  unit  of  the  Yakima 
project,  Washington,  $2,750,326;  on  the  Minidoka  project, 
Idaho,  $1,725,515;  on  the  Boise  project,  Idaho,  $1,526,873; 
on  the  North  Platte  project,  Nebraska  and  Wyoming,  $1,263,- 
617;  on  the  Rio  Grande  project,  New  Mexico  and  Texas, 
$1,103,389;  and  on  the  Uncompahgre  project,  Co'orado, 
$1,044,915. 

As  indicated  by  the  above  statement  of  moneys  expended 
and  areas  covered,  the  physical  works  comprising  the  project 
are  likewise  of  great  magnitude.  In  canal  construction  to 
June  30,  1916,  the  Service  had  completed  382  miles  of  over 
800  second-feet  capacity,  664  miles  of  from  300  to  800  second- 
feet  capacity,  1,580  miles  of  from  50  to  300  second-feet  capac- 
ity, and  6,891  miles  of  less  than  50  second-feet  capacity. 
Storage  reservoirs  have  been  built  as  part  of  most  of  the  pro- 
jects and  many  of  them  for  both  capacity  of  reservoir  and 
height  of  dam  are  noteworthy.  The  Roosevelt  reservoir  of 
the  Salt  River  project,  Arizona,  has  a  capacity  of  1,367,300 
acre  feet,  and  a  dam  280  feet  high ;  the  Arrowrock  reservoir 
of  the  Boise  project,  Idaho,  a  capacity  of  250,000  acre  feet  and 
a  dam  351  feet  high;  the  Pathfinder  reservoir  of  the  North 
Platte  project,  Nebraska  and  Wyoming,  a  capacity  of  1,100,000 
acre  feet  and  a  dam  218  feet  high ;  the  Lahontan  reservoir  of 
the  Truckee-Carson  project,  Nevada,  a  capacity  of  290,000  acre 
feet  and  a  dam  129  feet  high ;  the  Elephant  Butte  reservoir  of 
the  Rio  Grande  project,  New  Mexico  and  Texas,  a  capacity  of 
3,000,000  acre  feet  and  a  dam  300  feet  high ;  and  the  Shoshone 
reservoir  of  the  Shoshone  project,  Wyoming,  456,000  acre  feet 
capacity  and  a  dam  240  feet  high. 

The  projects  should  be  as  interesting  to  the  student  of 
water  right  problems  as  they  are  to  the  engineer.  Among 
those  projects  which  are  interstate  in  their  operations  are  the 
Yuma  project,  diverting  water  from  the  Colorado  in  California 


THE     RECLAMATION     ACT  137 

for  the  irrigation  of  lands  in  California  and  Arizona  (the 
water  being  syphoned  under  the  river  from  California  to 
Arizona)  ;  the  Lower  Yellowstone  project,  diverting  water 
from  the  Yellowstone  River  in  Montana  for  the  irrigation  of 
lands  in  Montana  and  North  Dakota;  the  North  Platte  pro- 
ject, diverting  water  from  the  North  Platte  River  in  Wyoming 
for  the  irrigation  of  lands  in  Wyoming  and  Nebraska;  and 
the  Rio  Grande  project,  diverting  water  from  the  Rio  Grande 
for  the  irrigation  of  lands  in  New  Mexico  and  Texas.  Lake 
Tahoe,  at  the  head  of  the  Truckee  River  in  California,  is  one 
of  the  reservoirs  of  the  Truckee-Carson  project  in  Nevada; 
and  Jackson  Lake,  at  the  head  of  the  Snake  River  in  Wyo- 
ming, is  the  reservoir  for  the  Minidoka  project  and  Carey  act 
projects  on  the  Snake  River  in  Idaho.  Illustrations  of  direct 
diversions  from  one  stream  basin  to  another  are  the  Truckee- 
Carson  canal,  diverting  the  waters  of  the  Truckee  River  for 
storage  in  the  Lahontan  reservoir  in  the  Carson  River,  and 
the  Uncompahgre  tunnel,  diverting  the  waters  of  the  Gunni- 
son  River  to  the  Uncompahgre  River. 

Although  the  results  accomplished  in  construction  work 
and  acreage  brought  under  intensive  cultivation  are  most  com- 
mendable, the  incorporation  of  many  separate  and  conflicting 
systems  in  a  single  project  should  be  considered  among  the 
greatest  attainments  in  operating  under  the  Reclamation  act. 
By  the  purchase  of  the  Arizona  Canal  and  a  number  of  mutual 
canal  systems  in  the  Salt  River  valley,  the  entire  valley  has 
been  brought  under  the  Salt  River  project.  Previous  to  the 
organization  of  the  Orland  project,  California,  the  Stoney 
Creek  Irrigation  Co.  and  the  Lemon  Home  Canal  Co.  were  in 
litigation  over  water  rights  on  Stoney  Creek.  The  two  canals 
were  purchased  as  part  of  the  distribution  system  of  the  Or- 
land project.  The  Uncompahgre  Valley  was  brought  into  one 
project  by  the  purchase  of  the  Montrose  and  Delta  Canal,  the 
Loutzenhizer  Canal,  the  Selig  Canal  and  the  Garnet  Canal. 
In  the  Boise  project,  not  only  were  the  New  York  Canal  and 
the  Idaho-Iowa  Canal  purchased,  but  two  irrigation  districts 
and  a  number  of  mutual  and  private  ditches  were  absorbed  by 
the  project.  On  the  Truckee-Carson  project  a  number  of  indi- 
vidual and  partnership  ditches  were  taken  over  and  the  entire 
lower  Carson  Valley  was  brought  into  the  project.  Similar 
action  has  been  taken  on  other  projects. 


CHAPTER  XII 


IRRIGATION  DISTRICTS 

Legislation  for  the  formation  of  districts  for  flood  protec- 
tion, drainage  and  roads  was  long  ago  adopted  in  both  the 
eastern  and  western  states.  Such  acts  secure  for  a  community 
the  benefits  of  protective  or  public  improvement  works 
through  taxation,  even  though  a  minority  of  the  property 
holders  object.  As  the  appreciation  of  the  results  of  irriga- 
tion in  the  interior  valleys  of  California  spread  during  the 
eighties  and  as  the  obstacle  in  the  way  of  community  enter- 
prises of  the  old  partnership  or  ordinary  corporation  type 
seemed  to  be  the  larger  ranchers  who  opposed  the  movement, 
the  compulsory  district  organization  was  suggested.  The  first 
general  irrigation  district  act  was  adopted  by  the  California 
legislature  in  1887,  and  has  since  been  generally  known  as  the 
Wright  Act,  as  State  Senator  C.  C.  Wright  was  the  most 
prominent  champion  of  the  measure. 

The  California  Irrigation  District  Act 

The  California  irrigation  district  act  as  amended  and 
supplemented  was  re-enacted  in  1897  and  is  locally  known  as 
the  Bridgeford  Act.  Statutes  very  closely  following  those  of 
California  have  been  adopted  in  every  irrigation  state. 

The  following  presentation  of  the  provisions  of  the  irriga- 
tion district  act  is  for  the  Bridgeford  Act  of  California,  but  it 
will  serve  as  a  general  statement  for  such  legislation  in  the 
other  states  as  the  points  of  difference  are  but  few. 

An  irrigation  district  is  initiated  by  a  petition  to  the  board 
of  supervisors  signed  by  a  majority  in  number  of  the  holders 
of  title  to  lands  susceptible  of  irrigation  from  the  proposed 
source  and  representing  a  majority  in  value  of  said  lands. 
The  petition  must  be  published  for  two  weeks  and  be  pre- 
sented at  a  regular  meeting  of  the  board,  at  which  t;me  a  hear- 
ing is  given  to  all  those  interested.  If  the  action  of  the  board 

138 


IRRIGATION     DISTRICTS  139 

is  favorable  it  defines  the  boundaries  and  divides  the  proposed 
district  into  three  or  five  divisions. 

After  favorable  action  by  the  board  a  date  is  set  for  an 
election  on  district  organization,  the  notice  for  which  must  be 
published  for  three  weeks.  All  qualified  electors  within  the 
district  may  vote  upon  the  organization  and  at  the  same  time 
vote  for  the  three  or  five  directors,  an  assessor,  a  tax  collector, 
and  a  treasurer.  Two-thirds  of  all  votes  cast  must  be  for  the 
formation  of  the  district  in  order  to  carry  it.  If  the  vote  be 
favorable,  the  board  of  directors  so  elected  has  control  of  the 
district  business,  causes  surveys  and  plans  of  the  irrigation 
system  to  be  made  and,  after  petition  so  to  do,  causes  a  bond 
election  to  be  held.  At  this  election  a  majority  of  the  votes 
cast  is  necessary  to  carry  the  bond  issue.  The  bonds  bear 
interest  not  exceeding  six  per  cent  and  are  payable  from  the 
twenty-first  to  the  fortieth  year. 

The  interest  on  the  bonds  and  the  operation  and  mainte- 
nance expenses  of  the  district  are  paid  by  taxing  all  lands 
(exclusive  of  improvements)  within  the  district  on  an  ad 
valorem  basis.  The  act  specifically  provides  for  the  sale  of 
property  for  non-payment  of  taxes  as  in  the  case  of  non- 
payment of  state  or  county  taxes. 

Several  amendments  to  the  district  act  were  passed  at  the 
regular  and  special  sessions  of  the  California  legislature  in 
1911.  The  aim  of  all  of  the  amendments  was  to  secure  a 
better  financial  basis  for  the  sale  of  the  district  bonds.  The 
principal  act  provides  for  a  detailed  examination  of  the  feas- 
ibility of  the  districts  by  a  commission,  composed  of  the 
attorney  general,  the  state  engineer,  and  the  superintendent 
of  banks,  when  called  upon  to  do  so  by  the  district  board  of 
directors.  When  the  commission  approves  the  feasibility  of 
any  district  project,  the  bonds  of  the  district  may  be  regis- 
tered at  the  office  of  the  state  controller  and  thereupon  shall 
be  considered  legal  investments  for  all  trust  funds  and  for 
funds  of  insurance  companies,  banks,  etc.,  and  are  in  general 
placed  upon  the  same  legal  basis  for  purposes  of  investment 
as  the  bonds  of  cities,  counties  and  school  districts.  By  an 
amendment  of  the  district  act  in  1917,  the  commission  is 
authorized  to  examine  the  district's  engineer's  report,  regard- 
ing the  nature  and  cost  of  construction  works,  preliminary  to 
a  bond  issue.  It  may  make  additional  surveys  and  examina- 
tion at  the  expense  of  the  district,  and  shall  make  a  full  report 
on  the  feasibility  of  the  project  to  the  directors  of  the  district. 
After  the  commission  has  approved  a  bond  issue,  no  material 


140  ELEMENTS      OF     WESTERN     WATER     LAW 

change  can  be  made  in  the  plans  without  the  consent  of  the 
commission. 

Prior  to  1913,  no  state  official  reported  upon  the  feasibility 
of  an  irrigation  district,  except  in  regard  to  the  certification 
of  the  bond  issue  as  above  stated.  In  that  year  the  act  was 
amended  to  provide  for  the  filing  with  the  state  engineer  of  a 
copy  of  the  petition  on  organization  to  the  board  of  supervis- 
ors, and  for  a  report  on  the  feasibility  of  the  project  by  the 
state  engineer.  If  the  state  engineer  reports  that  the  project 
is  not  feasible,  the  board  of  supervisors  must  dismiss  the  peti- 
tion, unless  petitioned  in  writing  by  three-fourths  of  the 
holders  of  title  to  land  within  the  proposed  district.  The  1913 
amendment  further  provides  that  progress  reports  of  construc- 
tion work  under  bond  issues  shall  be  filed  with  the  state  engi- 
neer, and  the  state  engineer  is  authorized  to  examine  the 
affairs  of  a  district  and  report  thereon.  In  1917,  the  state 
engineer  was  authorized  to  make  preliminary  surveys  and 
field  investigations  of  proposed  district  projects  at  the  expense 
of  the  state,  and,  pending  the  completion  of  such  surveys  and 
investigation,  the  state  water  commission  was  authorized  to 
withhold  from  appropriation  any  unappropriated  waters. 

In  1917,  as  an  alternative  method  of  organization,  it  was 
provided  that  the  organization  may  be  proposed  by  a  petition 
signed  by  not  less  than  five  hundred  petitioners,  each  peti- 
tioner to  be  a  resident  of  the  district  or  land  owner  therein, 
said  petitioners  to  own  not  less  than  twenty  per  cent  in  value 
of  the  land  in  the  district. 

Points  of  Difference  in  Irrigation  District  Acts 
The  principal  points  of  difference  in  the  various  state 
irrigation  district  acts  are  the  provisions  regarding  organiza- 
tion, state  regulation,  qualifications  of  voters,  bond  issues,  and 
method  of  assessment.  For  the  purpose  of  illustrating  the 
points  of  difference,  this  comment  will  be  restricted  to  legisla- 
tion in  California,  Colorado,  Idaho,  Nebraska,  Oregon  and 
Wyoming,  as  they  are  the  states  in  which  the  movement  has 
been  most  active. 

The  organization  petition  must  be  signed  in  California,  by 
a  majority  of  the  holders  of  title,  representing  a  majority  in 
value  of  the  land;  in  Colorado,  by  a  majority  of  land  owners, 
representing  a  majority  of  area;  in  Idaho,  by  fifty  or  by  a 
majority  of  holders  of  title,  representing  one-fourth  of  acreage 
assessable ;  in  Nebraska,  by  a  majority  of  land  owners  resi- 
dent in  the  state,  owning  at  least  ten  acres,  or  holding  five- 
year  lease  on  40  acres;  in  Oregon,  by  fifty  or  a  majority  of 
holders  of  title ;  in  Wyoming,  by  a  majority  of  the  freeholders. 


IRRIGATION     DISTRICTS  141 

In  order  to  carry  an  election  on  organization  it  is  necessary 
to  have  a  two-thirds  vote  in  California  and  Idaho,  a  majority 
vote  in  Colorado,  Nebraska  and  Wyoming,  and  a  three-fifths 
vote  in  Oregon. 

An  investigation  and  report  by  the  state  engineer  on  the 
feasibility  of  the  project  before  organization  is  provided  for  by 
California,  Idaho,  Nebraska  and  Wyoming.  In  all  six  of  the 
states,  the  state  engineer  examines  and  reports  upon  the  plans 
prepared  by  the  district  prior  to  issuing  bonds  for  construc- 
tion purposes.  Wyoming  is  the  only  state  making  the  approval 
of  plans  by  the  state  engineer  necessary  before  voting  on 
bonds.  In  California,  as  previously  stated,  no  bonds  can  be 
certified  by  the  state  until  the  plans  have  been  approved  by 
the  bond  commission.  California  irrigation  district  bonds  now 
find  a  ready  market  at  good  prices.  Much  of  the  prejudice 
against  such  bonds,  on  account  of  the  many  failures  under 
the  original  Wright  act,  has  been  overcome  for  the  most  part 
by  the  knowledge  that  the  project  was  subject  to  approval  by 
state  officials.  As  a  single  district  failure  may  cause  a  rever- 
sion to  the  old  attitude  of  distrust,  those  interested  in  irriga- 
tion development  should  be  willing  to  give  to  the  state  engi- 
neer, or  commission,  the  right  to  prohibit  the  formation  of  a 
district  if  found  not  feasible,  but  all  attempts  in  that  direction 
have  proved  unsuccessful. 

In  California,  any  elector  under  the  general  election  laws 
may  vote  at  all  district  elections.  In  Colorado,  the  right  to 
vote  is  restricted  to  the  owner,  or  entryman,  of  agricultural 
or  horticultural  land,  who  must  in  addition  be  over  21  years 
of  age,  a  resident  citizen  of  Colorado,  and  must  have  paid  taxes 
on  land  the  year  before.  In  Idaho,  the  voter  must  be  an  elec- 
tor under  the  general  election  laws  and  must  own  land  and 
reside  in  the  district.  In  Nebraska,  he  must  reside  in  the 
state  and  own  ten  acres  or  hold  five-year  lease  on  forty  acres 
in  district.  In  Oregon,  he  must  be  21  years  of  age  and  own 
land  in  the  district.  In  Wyoming,  any  freeholder  may  vote,  an 
affidavit  for  the  use  of  non-resident  freeholders  in  voting  being 
set  out  in  the  act. 

In  order  to  carry  a  bond  issue  an  affirmative  majority  vote 
is  sufficient  in  all  of  the  six  states  excepting  Idaho,  where  a 
two-thirds  vote  is  necessary.  The  interest  rate  on  bonds  shall 
not  be  in  excess  of  six  per  cent  in  all  of  the  states,  again 
excepting  Idaho,  where  it  shall  not  exceed  seven  per  cent. 
Bonds  must  be  sold  at  par  in  Idaho,  and  to  the  highest  bidder 
in  the  other  states,  but  for  not  less  than  95  in  Colorado  and 
Nebraska,  and  for  not  less  than  90  in  Oregon  and  Wyoming. 


142  ELEMENTS     OF     WESTERN     WATER     LAW 

In  California  and  Nebraska,  the  lands  within  the  district 
are  assessed  on  an  ad  valorem  basis — improvements  being 
exempted.  In  Idaho  the  assessment  is  iri  accordance  with  the 
benefits.  In  Colorado,  Oregon  and  Wyoming,  the  irrigable 
land  only  is  assessed,  and  that  at  the  same  rate  per  acre. 

The  Constitutionality  of  Irrigation  District  Acts 
Owing  to  the  compulsory  nature  of  the  irrigation  district 
enterprise,  it  was  to  be  expected  that  litigation  should  be 
initiated  immediately  after  the  formation  of  the  first  California 
districts  by  the  landowners  whose  lands  had  been  included 
against  their  wish.  The  validity  of  the  act  was  assailed  on 
every  possible  ground,  but  was  upheld  by  the  Supreme  Court 
of  California  and  finally,  in  the  celebrated  case  of  Fallbrook 
Irrigation  District  v.  Bradley  (164  U.  S.  112),  by  the  Supreme 
Court  of  the  United  States.  Extensive  litigation  has  followed 
the  inauguration  of  irrigation  districts  in  other  states,  but 
the  validity  of  the  several  acts  has  likewise  been  upheld.  There 
seems  to  be  no  question,  therefore,  that  the  many  provisions 
of  the  irrigation  district  acts  are  legally  sound. 

The  report  of  the  case  of  Fallbrook  Irrigation  v.  Bradley 
is  interesting  not  only  for  the  opinion  by  the  court,  but  also 
for  the  argument  against  the  validity  of  the  act  given  by 
Joseph  H.  Choate,  who  in  his  argument  presents  the  view  of 
a  great  number  of  Californians  at  that  time  in  regard  to  the 
questionable  novel  features  of  the  act.  The  following  extract 
from  Mr.  Choate's  argument  shows  what  he  thought  of  the 
new  system: 

This  brings  into  view  the  unique  and,  as  we  believe,  wholly 
unprecedented  features  of  the  scheme  contrived  by  this  act  for  the 
oppression  of  the  farmers  of  California.  We  think  that  the  statute 
books  of  all  states  and  nations  outside  of  California,  prior  to  1887,  will 
be  searched  in  vain,  without  finding  another  such  example,  and  espe- 
cially in  view  of  the  construction  which  has  been  given  to  certain 
details  of  this  statute  by  the  Supreme  Court  of  California. 

Early  Irrigation  Districts  in  California 
Irrigation  Investigations  of  the  United  States  Department 
of  Agriculture  has  assembled  much  valuable  data  regarding 
the  many  districts  formed  immediately  after  the  passage  of 
the  original  Wright  act  of  1887.  Mr.  Frank  Adams,  in  charge 
of  Irrigation  Investigations  in  California,  has  presented  some 
of  the  data  in  his  very  commendable  report  on  Irrigation  Dis- 
tricts in  California,  1887-1915.  (Published  as  Bulletin  No.  2, 
Department  of  Engineering,  State  of  California.)  The  follow- 
ing statistical  information  was  included  in  a  paper  prepared  by 
Mr.  Adams  for  the  Commonwealth  Club  of  California.  It  is 


IRRIGATION     DISTRICTS  143 

given  here,  as  it  so  ably  summarizes  the  fortunes,  or  misfor- 
tunes, of  the  districts  of  the  early  movement : 

Forty-nine  districts  were  organized,  and  of  these  only  25  ever 
issued  any  bonds. 

The  statement  that  practically  all  of  the  49  defaulted  in  large 
amounts  should  therefore  be  reduced  one-half. 

Of  the  24  districts  that  issued  no  bonds,  none  at  this  time  has 
any  outstanding  indebtedness.  Eleven  have  been  legally  dissolved. 
Twelve  have  not  been  dissolved,  although  they  are  not  active.  One, 
the  Walnut  Irrigation  District,  covering  about  900  acres  of  land  in  Los 
Angeles  County,  near  Whittier,  has  been  active  and  successful  from 
the  date  of  its  organization  and  has  never  defaulted  in  any  way  in 
payment  of  indebtedness. 

Of  the  25  that  issued  bonds,  7  have  made  some  kind  of  a  settle- 
ment and  have  no  outstanding  obligations  as  districts  at  this  time. 
Two  have  made  settlement,  but  still  have  small  outstanding  indebted- 
ness that  either  has  been  declared  illegal  or  can  not  be  found.  Four 
have  made  settlement  by  exchanging  new  for  old  bonds  and  are  now 
active,  and  with  the  exception  of  one,  whose  reorganization  is  not  yet 
complete  and  which  therefore  can  not  be  judged,  are  active  and  suc- 
cessful and  can  undoubtedly  be  counted  on  to  pay  both  bonds  and 
interest  as  due.  Five  have  compromise  settlements  pending.  Seven 
have  apparently  been  totally  abandoned,  with  no  plan  of  settlement 
as  yet  seriously  taken  up. 

Where  settlements  have  been  made  they  have  been  so  different 
that  it  is  hard  to  explain  them  with  sufficient  brevity  for  the  purpose 
of  this  paper,  and  reference  is  therefore  made  to  the  table  that  will 
be  submitted.  The  lowest  basis  of  settlement  has  been  30  cents  on 
the  dollar,  and  the  highest  between  80  cents  and  90  cents.  Several 
compromised  at  50  cents. 

Of  the  7  districts  that  apparently  have  been  totally  abandoned, 
and  for  which  no  plans  of  settlement  have  yet  been  seriously  taken 
up,  at  least  3  were  wildcat  land-promotion  schemes,  pure  and  simple, 
and  although  reported  favorably  by  engineers  of  reputation,  apparently 
never  had  engineering  justification,  chiefly  due  to  lack  of  water.  The 
outlook  for  them  is  not  encouraging,  although  in  time  they  will  without 
question  be  cleared  up  in  some  way.  This  might  also  be  said  of  the 
other  four. 

Operations  Under  Irrigation  District  Acts 

Although  twelve  states  had  irrigation  district  acts  in  1909, 
only  eight  had  district  projects  irrigating  land  in  that  year, 
and  only  nine  had  projects  either  completed  or  under  construc- 
tion in  1910.  The  data  for  the  following  table  have  been  taken 
from  the  Thirteenth  Census,  which  is  the  latest  complete  com- 
pilation published.  The  table  shows  by  states  the  total 
acreage  irrigated  in  1909,  the  acreage  irrigated  by  districts  in 
1909,  and  the  acreage  included  within  districts  in  1910. 


144 


ELEMENTS     OF     WESTERN     WATER     LAW 


Total  Acreage 

STATE.  Irrigated  in 

1909. 

All  States 13,738,485 

California  2,664,104 

Colorado  2,792,032 

Idaho  1,430,848 


Montana  

Nebraska  

New  Mexico  

Oregon  

Utah   . 


1,679,084 
255,950 
461,718 
686,129 
999,410 


Acreage  Irrigated 
by  Districts  in 
1909. 

528,642 

173,793 

115,304 

140,930 

412 

76,448 


Wyoming  1,133,302 


1,500 

8,455 

11,800 


Acreage  Included 
in  Districts  in 
1910. 

1,581,465 

606,351 

487,370 

329,796 

6,640 

91,076 

16,400 

5,980 

10,802 

27,050 


It  is  apparent  from  a  study  of  the  above  table  that  there 
was  but  little  district  development,  up  to  1910,  outside  of  Cali- 
fornia, Colorado,  Idaho  and  Nebraska.  Since  1910,  district 
activity  has  been  far  more  pronounced. 

At  the  close  of  1916  in  California  the  six  districts  in  opera- 
tion were  irrigating  623,297  acres.  Thirteen  other  districts 
had  been  organized.  The  total  acreage  included  within  the 
nineteen  districts  was  1,302,884.  Most  of  the  increase  over  the 
1909-1910  table  is  due  to  the  Imperial  Irrigation  District, 
which  has  taken  over  the  system  of  the  California  Develop- 
ment Co.,  diverting  water  from  the  Colorado  River.  It  com- 
prises an  area  of  576,600  acres  and  in  1916  irrigated  333,724 
acres. 

According  to  the  1915-1916  report  of  the  state  engineer  of 
Idaho,  in  1916  there  were  thirty-five  districts  in  Idaho,  twenty- 
seven  of  which  had  submitted  reports  to  the  state  engineer. 
The  twenty-seven  districts  comprise  a  total  of  383,050  acres, 
249,200  acres  of  which  were  irrigated  in  1916.  Six  of  the  eight 
districts  not  reporting  have  a  total  area  of  97,118  acres,  so  that 
Idaho  had  in  excess  of  480,000  acres  under  district  organiza- 
tion in  1916. 

The  1915-1916  report  of  the  state  engineer  of  Oregon 
shows  that  in  1916  Oregon  had  seventeen  districts  covering 
approximately  416,400  acres  and  irrigating  (in  1916)  32,200 
acres,  of  which  23,000  acres  were  irrigated  prior  to  the  organi- 
zation of  the  districts. 

The  successive  state  engineers  of  Colorado  have  been  very 
frank  and  direct  in  their  statements  regarding  irrigation  dis- 
tricts in  Colorado.  The  last  report  of  the  state  engineer  (1915- 
1916)  contains  a  criticism  which  reads  like  those  in  reference 
to  the  early  districts  under  the  Wright  act  in  California. 
Among  other  things,  he  says,  "Such  flagrant  abuses  were  prac- 
ticed under  this  law,  so  many  districts  were  organized  for  no 


IRRIGATION     DISTRICTS  145 

other  purpose  than  to  assess  lands  to  pay  the  salaries  of  offi- 
cers of  the  district,  that  the  depreciation  of  irrigation  securi- 
ties was  inevitable.  Promoters,  aided  and  fostered  by  certain 
classes, — boomers,  real  estate  men  and  so-called  colonizers — 
loaded  many  acres  of  Colorado's  lands  to  the  hub  with  worth- 
less irrigation  securities."  The  report  states  that  sound  irriga- 
tion development  is  beginning  to  revive.  It  cautions  the  citi- 
zens of  Colorado  to  be  on  the  alert  to  safeguard  irrigation 
securities  in  the  future,  so  that  confidence  may  be  stimulated 
and  financial  assistance  rendered  to  Colorado's  many  excellent 
projects. 

The  California  Irrigation  Act 

In  his  1915-1916  report,  the  state  engineer  of  Oregon  in 
commenting  on  the  Oregon  irrigation  district  act  said :  "At 
every  session  of  the  legislature,  a  whole  flock  of  amendments 
to  the  law  are  proposed.  Each  district  has  its  own  pet  scheme, 
which  requires  an  adjustment  of  the  statute."  The  comment 
will  probably  apply  in  every  other  western  state.  It  certainly 
does  in  California,  where  proponents  of  projects  not  only  have 
insisted  upon  special  amendments  to  the  irrigation  district 
act,  but  have  secured  the  passage  of  entire  new  acts  to  fit 
special  conditions.  So  far  has  this  tendency  been  followed, 
that  Mr.  Kinney,  in  criticising  the  many  district  acts  in  Cali- 
fornia, concluded,  "About  the  only  law  that  the  state  of 
California  really  lacks  in  the  way  of  district  law,  relating  to 
waters,  is  one  upon  the  subject  of  the  control  and  regulation 
of  rain  water  before  it  hits  the  earth*,  and  we  have  no  doubt 
but  that  such  a  law  will  be  enacted,  upon  our  suggestion,  at 
the  next  session  of  the  legislature."  (Irrigation  and  Water 
Rights,  Pg.  3174.) 

It  is  believed,  however,  that  the  California  irrigation  act, 
enacted  in  1915  and  amended  and  supplemented  in  1917,  will 
be  of  material  assistance,  especially  in  connection  with  the 
larger  and  more  complicated  projects.  The  act  was  originally 
passed  to  assist  the  proponents  of  the  Iron  Canyon  project, 
in  the  upper  Sacramento  Valley,  in  co-operating  with  the 
United  States  Reclamation  Service.  It  is  now  being  used  for 
the  formation  of  a  "conservation  district"  to  embrace  about 
1,000,000  acres  in  the  counties  of  Fresno,  Tulare  and  Kings, 
susceptible  of  irrigation  from  the  Kings  River  when  regulated 
by  the  proposed  Pine  Flat  reservoir. 

The  act  not  only  provides  for  the  formation  of  single  irri- 
gation districts  but  also  for  conservation  districts  to  include 
irrigation  districts,  reclamation  districts,  drainage  districts, 
and  other  political  subdivisions  organized  to  promote  irriga- 


146  ELEMENTS     OF     WESTERN     WATER     LAW 

tion,  reclamation  or  drainage.  It  further  provides  that  com- 
mercial irrigation  enterprises  and  mutual  water  companies  can 
share  in  the  benefits  of  the  district.  Excepting  the  Carey  act, 
there  are  irrigation  enterprises  of  every  type  taking  water 
from  the  Kings  River.  The  act  will  allow  the  inclusion  of  all 
such  enterprises  within  the  one  project,  which  will  cover  drain- 
age, flood  control  and  electric  power  development  as  well  as 
irrigation. 

The  act  provides  an  irrigation  board  of  three  members 
appointed  by  the  Governor  for  terms  of.  four  years.  The  board 
has  full  control  of  each  district  formed  under  the  act,  from  its 
initiation  to  the  completion  of  construction  work  and  actual 
operation. 

The  distinguishing  features  of  the  act  are :  the  provision 
for  a  board  of  apportionment  of  three  members  appointed  by 
the  irrigation  board  to  apportion  the  amount  of  water  and 
power  developed,  and  cost  thereof,  to  each  unit  of  the  con- 
servation district;  the  provision  for  levying  assessment  in 
accordance  with  benefits,  and  not  on  an  ad  valorem  basis  as 
in  the  ordinary  irrigation  district  act;  the  provision  making 
the  decision  of  the  irrigation  board  final  after  hearing  on  the 
report  of  the  three  assessors,  appointed  by  the  irrigation 
board;  the  provision  for  the  listing  and  collection  of  assess- 
ments, and  sale  of  land  in  case  of  non-payment,  by  the  county 
officers  in  the  same  manner  as  county  and  school  district 
taxes;  the  provision  entitling  each  land  owner  to  vote  in  per- 
son or  by  proxy,  and  to  cast  one  vote  for  each  acre  owned; 
and  the  provision  requiring  the  deposit  of  all  money  collected 
with  the  state  treasurer,  to  be  paid  out  by  him  upon  the  order 
of  the  irrigation  board. 

Irrigation  Districts  on  Reclamation  Service  Projects 

As  noted  in  the  previous  chapter,  the  Reclamation  act 
provides  that,  when  the  water-right  payments  have  been  made 
for  the  major  portion  of  the  lands,  the  management  and  opera- 
tion of  the  irrigation  works  shall  pass  to  the  land  owners,  to 
be  maintained  at  their  expense  under  some  form  of  organiza- 
tion acceptable  to  the  Secretary  of  the  Interior.  The  water 
users'  association  -was  the  form  of  organization  used  until 
very  recently.  The  association  is  simply  a  mutual  water 
company  in  which  one  share  of  stock  represents  one  acre  of 
land. 

The  Reclamation  Extension  act  of  August  13,  1914,  spe- 
cifically mentions  the  irrigation  district  as  one  form  of  organi- 
zation to  be  recognized  by  the  Secretary.  The  present  attitude 
of  the  Service  is  to  use  the  irrigation  district  in  preference 


IRRIGATION     DISTRICTS  147 

to  the  water  users'  association.  There  are  two  principal  argu- 
ments in  favor  of  such  action — one  in  favor  of  the  land  owner 
and  the  other  in  favor  of  the  government. 

Under  the  water  users'  associations,  the  stock  subscrip- 
tion contract  is  practically  a  first  mortgage  upon  the  land. 
Land  owners  under  such  associations  have,  therefore,  experi- 
enced much  difficulty  in  borrowing  money  for  needed  im- 
provements. Under  the  irrigation  district,  there  is  no  contract 
which  will  show  in  an  abstract  of  title  as  a  lien  or  mortgage. 
The  assessments  are  levied  simply  as  taxes,  and  the  abstract 
will  show  whether  such  taxes  have  been  paid  or  not.  Banks 
and  other  loan  agencies  may,  therefore,  lend  money  with  the 
assurance  that  their  mortgage  is  the  first  lien. 

From  the  government's  view-point,  the  district  is  desir- 
able, as  the  method  of  collecting  annual  charges  is  so  well 
fixed  and  definite.  Where  one  knows  that  in  case  of  default 
his  lands  will  be  sold  in  an  almost  automatic  procedure,  he 
is  far  more  careful  about  paying  promptly  than  he  is  in  meet- 
ing the  ordinary  stock  assessment.  Furthermore,  some  of  the 
projects  contain  areas  within  their  boundaries  which  are  not 
"signed  up"  to  the  project  and,  therefore,  are  receiving  bene- 
fits for  which  no  payment  is  made.  Where  a  district  is  organ- 
ized to  include  a  project,  such  lands  can  be  included  and  thus 
made  liable  for  assessments. 

In  the  first  edition  of  this  book  the  view  was  expressed 
(pg.  141)  that  there  was  probability  of  conflict  in  using  the 
reclamation  fund  for  financing  irrigation  distr'cts,  as  the  Rec- 
lamation act  restricts  the  use  of  water  to  individual  holdings 
of  160  acres  and  necessitates  residence  by  the  water  user  in 
the  neighborhood  of  the  land.  The  latter  condition  has  been 
to  a  great  extent  removed  by  departmental  interpretation,  but 
the  acreage  limitation  still  stands.  Idaho  was  one  of  the  first 
states  to  amend  its  irrigation  district  act  by  providing  that  the 
directors  of  a  district,  instead  of  issuing  bonds,  may  enter  into 
a  contract  with  the  United  States  for  the  construction  of  the 
works  under  the  terms  of  the  Reclamation  act.  In  Nampa  & 
Meridian  Irr.  Dist.  v.  Petrie  (153  Pac.  425),  the  Supreme 
Court  of  Idaho  upheld  a  contract  between  the  Nampa  etc. 
District  and  the  United  States  for  the  inclusion  of  the  district 
lands  as  part  of  the  Boise  project.  The  two  conditions  of  the 
Reclamation  act,  above  mentioned,  were  pressed  as  reasons 
for  declaring  the  contract  unlawful.  The  Court  held  that  the 
Warren  Act  of  February  21,  1911,  and  the  Reclamation  Exten- 
sion act  of  August  13,  1914,  make  no  provision  for  residence 
upon  the  lands,  and  that  the  acreage  limitation  was  not  then 


148  ELEMENTS      OF     WESTERN     WATER     LA\V 

in  question  and  would  not  be  until  the  land,  in  excess  of  160 
acres  held  by  one  individual,  was  actually  assessed  for  water 
which,  under  the  Reclamation  act,  could  not  legally  be  deliv- 
ered. 

The  Nampa  etc.  District  and  the  Pioneer  Irrigation  Dis- 
trict are  both  old  districts  included  within  the  Boise  project. 
The  aim  of  the  Service  is  to  form  districts  to  represent  an 
entire  project  or  a  complete  unit  thereof.  It  has  secured  the 
amendment  of  the  irrigation  district  act  in  most  of  the  western 
states  in  order  to  facilitate  such  organization  and  co-operation. 
The  Minidoka  Irrigation  District  was  organized  July  22,  1913, 
and  is  now  operating  the  north  side  of  the  Minidoka  project. 
Districts  have  also  been  formed,  to  act  as  fiscal  agent,  or  to 
take  over  the  operation  of  parts  of  the  project,  on  the  Yakima 
project  in  Washington  and  on  the  Strawberry  Valley  project 
in  Utah. 

Congressional  Act  of  August  11,  1916 

The  purpose  of  this  act  is  to  give  a  lien  upon  public  lands 
and  entered  land,  for  which  no  final  certificate  has  issued, 
within  an  irrigation  district.  The  act  does  not  apply  to  a  dis- 
trict of  which  the  major  part  is  unentered  land.  Liens  due 
to  charges  legally  assessed  upon  unpatented  entries  may  be 
enforced  by  the  sale  thereof  in  the  same  way  as  in  the  case  of 
private  lands.  If  the  land  thus  sold  has  been  withdrawn  under 
the  Reclamation  act,  no  patent  shall  issue  to  the  holder  of  the 
tax  deed  until  satisfactory  proof  is  made  of  reclamation  and 
irrigation  required  by  the  Reclamation  act,  and  the  payments 
required  by  said  act  are  also  made.  In  case  of  sale  of  entered, 
but  unpatented  lands,  not  subject  to  the  Reclamation  act,  the 
purchaser  may  secure  patent  upon  payment  to  the  local  land 
office  of  $1.25  per  acre,  or  such  other  price  as  may  be  fixed  by 
law  for  such  lands,  and  upon  a  satisfactory  showing  that  the 
irrigation  works  have  been  constructed  and  that  water  is 
available  for  such  lands.  The  purchaser,  at  time  of  application 
for  patent,  shall  have  the  qualification  of  a  homestead  entry- 
man  or  desert  land  entryman,  and  not  more  than  160  acres  of 
said  land  shall  be  patented  to  any  one  purchaser. 

No  unentered  land  or  entered  land,  without  final  certifi- 
cate, shall  be  subject  to  the  lien  for  district  assessments  until 
the  Secretary  of  the  Interior  has  favorably  passed  upon  the 
sufficiency  of  the  water  supply  and  the  feasibility  of  the 
project. 

No  public  lands  which  were  unentered  at  time  of  levy  of 
assessment  against  them  shall  be  sold  for  taxes,  but  the  tax 
shall  continue  a  lien  upon  the  lands,  and  not  more  than  160 


IRRIGATION     DISTRICTS  149 

acres  of  such  land  shall  be  entered  by  any  one  person.  When 
such  lands  shall  be  applied  for  under  the  homestead  or  desert- 
land  laws,  the  application  shall  be  suspended  for  thirty  days 
to  enable  the  applicant  to  present  the  proper  certificate  show- 
ing that  the  district  taxes  have  been  paid. 

Nothing  in  the  act  shall  be  construed  as  creating  any 
obligation  against  the  United  States  to  pay  any  of  the  charges, 
assessments  or  debts  incurred. 

The  Future  of  Irrigation  Districts 

In  the  many  decisions  upon  irrigation  district  acts,  the 
district  is  held  to  be  a  "quasi  municipal  corporation."  The 
Supreme  Court  of  Idaho,  accordingly,  in  Pioneer  Irr.  Dist.  v. 
Walker  (119  Pac.  304),  held  that  the  provisions  of  the  Idaho 
irrigation  district  act,  necessitating  property  qualifications  by 
voters,  are  unconstitutional,  as  the  state  constitution  forbids 
the  imposition  of  such  qualifications  for  electors,  and  irrigation 
districts,  being  quasi  municipal  corporations,  are  subject  to 
the  general  election  laws. 

The  Supreme  Court  of  Oregon,  in  Payette-Oregon  Slope 
Irr.  Dist.  v.  Peterson  (128  Pac.  837),  refused  to  follow  the 
Idaho  Supreme  Court,  and  its  attitude  seems  the  more  logical. 
The  Oregon  Court  recognized  the  districts  as  quasi  municipal 
corporations,  but  held  that  they  differ  widely  from  any  other 
quasi  municipality  in  the  powers  conferred  and  the  objects  to 
be  accomplished.  A  municipal  corporation  such  as  a  city  and 
quasi  municipal  corporations  such  as  road  districts  and  school 
districts  are  governmental,  and  all  persons  within  their  cor- 
porate limits  are  subject  to  their  authority  and  are  burdened 
or  benefited  by  their  acts.  The  irrigation  district  is  thus  dis- 
tinguished from  the  others : 

Others  than  landowners  have  no  possible  interest  in  the  irriga- 
tion districts  as  such,  or  in  its  financial  management,  nor  right  to  a 
voice  in  the  naming  of  its  officers;  and  a  non-resident  landowner  has 
exactly  the  same  interest  and  responsibility  as  a  resident,  and  is  enti- 
tled to  the  same  voice  in  the  direction  of  its  affairs.  Districts  within 
this  statute  can  be  distinguished  from  private  corporations  only  by  the 
fact  that  their  organization  is  compulsory  upon  those  not  petitioning 
for  it,  and  that  the  expense  of  maintenance  is  incurred  and  a  large 
debt  created,  which  are  made  liens  on  the  land  without  the  consent  of 
the  owner,  payment  of  which  must  be  made  by  compulsory  assessment. 
No  other  elements  of  government  or  municipal  proprietorship  are 
involved. 

The  policy  of  allowing  any  elector  within  a  district  to  vote 
at  elections  and  of  prohibiting  from  voting  landowners  in  the 
district  who  are  not  resident  electors,  is  one  of  the  most  objec- 


150  ELEMENTS     OF     WESTERN     WATER     LAW 

tionable  features  of  the  irrigation  district  act  in  California  and 
other  states  having  similar  provisions.  As  noted  above,  the 
new  California  irrigation  act  allows  each  land  owner  to  cast 
one  vote  for  each  acre  of  land. 

Regardless  of  objectionable  features,  however,  the  irriga- 
tion district  is  becoming  the  favorite  method  of  organization 
for  the  larger  projects.  Its  use  by  the  Reclamation  Service 
and  the  opportunity  to  extend  its  provisions  to  public  lands 
under  the  congressional  act  of  August  11,  1916,  will  be  re- 
flected in  a  very  large  increase  in  area  affected,  when  the 
returns  of  the  next  census  are  published.  In  a  previous  chap- 
ter, it  is  stated  that  the  mutual  company  is  destined  to  be  the 
controlling  type  in  the  operation  of  irrigation  works.  The 
statement  is  undoubtedly  true  when  we  distinguish  between 
"private"  and  "public"  systems.  The  district  may  be  termed 
a  "public  mutual"  enterprise.  Whether  the  "private  mutual" 
or  the  "public  mutual"  will  be  irrigating  the  larger  total  acre- 
age ten  years  from  now,  is  not  a  serious  question.  The  point 
of  importance  is  that  the  "mutuals"  control. 


CHAPTER  XIII 

THE  DESIDERATUM  IN  LEGISLATION  REGARDING 
THE  PUBLIC  WATERS 

The  legal  principles  governing  the  use  of  water  are  the 
result  of  judicial  decisions  rather  than  legislation.  Just  as 
the  doctrine  of  riparian  rights  is  the  outgrowth  of  the  old  com- 
mon law  as  interpreted  by  the  English  courts,  so  the  doctrine 
of  prior  appropriation  is  the  outgrowth  of  the  customs  of  the 
pioneer  miners  and  irrigators  as  interpreted  by  the  western 
courts.  To  continue  to  exist  as  common  law,  a  legal  principle 
must  be  reasonably  adapted  to  the  time  and  the  place.  The 
strictly  arid  states  long  ago  abrogated  the  doctrine  of  riparian 
rights  because  it  was  wholly  unsuited  to  conditions  there 
existing,  and  California  and  Washington  have  refused  to  fol- 
low the  English  common  law  rule  of  percolating  waters  for 
the  same  reason. 

Riparian  Rights 

The  western  states  still  tolerating  even  a  modified  riparian 
doctrine  are  only  semi-arid  and,  naturally,  the  older  and  larger 
cities  of  such  states  are  in  the  semi-humid  section.  It  is  there- 
fore not  strange  that  their  supreme  courts  still  find  some  vir- 
tue in  the  doctrine.  Where  irrigation  is  not  the  first  aid  to 
successful  agriculture  the  riparian  doctrine  seems  rational, 
and  it  would  be  at  least  unusual  for  one  residing  in  a  non- 
irrigated  section  and  trained  in  the  common  law  of  the  books 
to  consider  the  doctrine  of  prior  appropriation  as  other  than 
a  makeshift  of  frontier  camps.  During  the  last  two  decades, 
however,  irrigation  has  been  given  a  tremendous  impetus,  and 
the  great  size  of  the  many  projects  undertaken  in  the  semi- 
arid  states  has  done  much  to  show  the  unsuitability  of  the 
riparian  doctrine. 

151 


152  ELEMENTS     OF     WESTERN     WATER     LAW 

The  doctrine  of  prior  appropriation,  on  the  contrary,  is 
proving  more  and  more  adapted  to  the  needs  of  growing  com- 
munities with  restricted  water  supplies.  The  cardinal  prin- 
ciple being  reasonable  use  and  the  elimination  of  waste,  no 
ditch  is  allowed  to  divert  water  unless  there  is  actual  immedi- 
ate need  for  the  use  thereof.  The  popular  notion  of  the  exclu- 
sive ownership  of  water  finds  no  authorization  in  the  books. 
On  the  contrary,  expressions  like  the  following  show  the  atti- 
tude of  courts: 

It  is  the  policy  of  the  law  that  the  best  methods  should  be  used 
and  no  person  allowed  more  water  than  is  necessary,  when  properly 
applied,  and  thus  a  larger  acreage  may  be  made  productive  by  its 
extended  application.  Little  Walla  Irr.  Union  v.  Finis  Irr.  Co. — Ore. — 
124  Pac.  668. 

As  an  instrument  of  the  best  development,  the  superior 
claim  of  the  doctrine  of  prior  appropriation  is  perhaps  nowhere 
better  shown  than  in  the  case  of  Schodde  v.  Twin  Falls  Land 
&  Water  Company,  decided  by  the  Supreme  Court  of  the 
United  States  on  April  1,  1912  (32  Sup.  Ct.  Rep.  479).  The 
plaintiff  owns  lands  riparian  to  the  Snake  River  in  Idaho,  and 
by  means  of  a  number  of  water  wheels,  from  24  to  34  ft.  in 
diameter,  elevated  the  waters  thereof  to  irrigate  his  lands. 
The  defendant  company,  by  the  construction  of  the  Twin  Falls 
dam  and  the  consequent  back  water,  destroyed  the  current  and 
rendered  his  wheels  useless.  If  the  doctrine  of  riparian  rights 
were  recognized  in  Idaho  the  remedy  of  the  plaintiff  would 
have  been  unquestioned,  but  the  doctrine  was  long  ago  abro- 
gated. The  Supreme  Court  in  affirming  a  judgment  of  dis- 
missal quotes  with  approval  the  following  words  of  the  trial 
Court : 

It  is  unquestioned  that  what  he  has  actually  diverted  and  used 
upon  his  land,  he  has  appropriated ;  but  can  it  be  said  that  all  the  water 
he  uses  or  needs  to  operate  his  wheels  is  an  appropriation?  As  before 
suggested  there  is  neither  statutory  nor  judicial  authority  that  such 
a  use  is  an  appropriation.  Such  a  use  also  lacks  one  of  the  essential 
attributes  of  an  appropriation — it  is  not  reasonable. 

The  opinion  is  but  another  illustration  of  the  point  that 
the  doctrine  of  prior  appropriation  aims  towards  the  highest 
use  and  greatest  development,  and  is  adapted  to  the  time  and 
the  place. 

Numbers  of  suggestions  have  been  made  regarding  meth- 
ods of  limiting  or  abolishing  the  riparian  right  by  legislation. 
The  California  Water  Commission  act  provides,  in  section  11, 
that  the  non-application  of  water  to  beneficial  purposes  upon 
riparian  lands  for  any  continuous  period  of  ten  successive 
years  shall  be  deemed  to  be  conclusive  presumption  that  the 


THE     DESIDERATUM  153 

use  of  such  water  is  not  needed  upon  said  lands.  This  pro- 
vision flies  in  the  face  of  the  principle,  so  often  reiterated,  that 
the  riparian  right  is  not  created  by  use  and  it  does  not  cease 
with  disuse.  The  California  Supreme  Court  itself,  however, 
by  way  of  dictum  only,  has  said : 

It  may  well  be  said  there  is  room  for  and  even  need  for  legisla- 
tion which  will  require  riparian  proprietors  to  exercise  their  irrigation 
rights  in  the  use  of  water  within  a  limited  period,  or  to  be  decreed  to 
have  waived  these  rights.  Other  similar  legislation  making  for  the 
general  good  will  readily  occur  to  one's  mind.  But  it  is  not  the  prov- 
ince of  this  court  to  legislate,  and  it  would  be  abhorrent  to  justice 
now  to  say  to  an  upper  riparian  proprietor,  who  has  rested  in  security 
upon  the  rights  which  this  court  has  over  and  over  again  declared  to 
be  his,  that  he  has  lost  those  rights  through  no  fault  or  failure  of  his 
own,  but  simply  because  he  has  not  seen  fit  to  use  the  waters  upon 
his  riparian  land.  We  take  it  that  the  legislature  itself  would  be  slow 
so  to  decree  without  giving  the  riparian  proprietor  an  opportunity  to 
make  a  beneficial  use  of  the  waters.  We  are  asked  to  do  this  without 
giving  him  such  an  opportunity.  This  would  be  equivalent  to  this 
court  erecting  a  statute  of  limitations  against  an  upper  riparian  pro- 
prietor and  in  the  same  breath  decreeing  that  it  had  barred  all  his 
rights.  (Miller  &  Lux  v.  Enterprise,  etc.,  47  Cal.,  Dec.  1,  7.  A  re- 
hearing was  granted,  and  the  final  opinion,  169  Cal.  415,  does  not  con- 
tain the  above  dictum.) 

It  seems  certain  that  legislation  limiting  the  time  within 
which  action  may  be  brought  by  a  riparian  owner  against 
appropriators  will  be  upheld  as  valid.  Thus  far  no  western 
state  has  passed  such  legislation,  although  bills  to  that  effect 
were  introduced  at  the  1917  session  of  the  California  legisla- 
ture. 

The  1917  California  legislature  passed  a  measure,  gen- 
erally known  as  the  Hawson  Bill,  which  should  materially 
assist  appropriators  in  injunction  cases  brought  by  riparian 
owners.  The  act  provides  that  in  an  action  brought  by  a 
riparian  owner  to  enjoin  the  diversion  or  use  of  water  by  an 
appropriator,  the  latter  may  set  up  in  his  answer  that  the 
water  is  for  the  irrigation  of  land  or  other  public  use,  and  also 
set  forth  the  amount  to  be  diverted,  nature,  place  and  time 
of  use,  and  show  by  reference  to  the  discharge  of  the  stream 
that  the  proposed  diversion  may  be  made  without  interfering 
with  the  actual  and  necessary  uses  of  the  plaintiff.  The 
answer  must  also  state  that  the  defendant  desires  the  court  to 
ascertain  and  fix  the  damages,  if  any,  that  will  result  to  the 
plaintiff  or  to  his  riparian  lands  from  the  diversion.  The  act 
further  provides  certain  details  regarding  the  trial  and  appeal, 
if  desired,  after  which  upon  the  acceptance  by  plaintiff  "of 
cuch  amount  so  awarded  or  upon  the  affirmation  of  such  decis- 


154  ELEMENTS     OF     WESTERN     WATER     LAW 

ion  on  appeal  so  that  such  judgment  shall  become  final,  the 
defendant  shall  have  the  right  to  divert  and  appropriate  from 
such  stream,  against  such  plaintiff  and  his  successors  in  inter- 
est, the  quantity  of  water  therein  adjudged  and  allowed/' 

Percolating  Waters 

California,  Washington  and  Idaho  are  the  only  western 
states  which  do  not  follow  the  common  law  rule  that  percolat- 
ing waters  belong  to  the  owner  of  the  soil.  The  Supreme 
Courts  of  California  and  Washington  have  departed  from  the 
common  law,  and  have  laid  down  a  new  rule  somewhat  analo- 
gous to  that  of  riparian  rights  in  the  surface  streams.  Under 
the  new  rule,  the  owner  of  land  overlying  a  body  of  percolating 
water  is  entitled  only  to  a  reasonable  use  of  such  upon  his 
overlying  land,  and  may  enjoin  any  diversion  of  such  water 
to  lands  not  overlying  which  will  interfere  with  his  reasonable 
use. 

The  Supreme  Court  of  Idaho  has  held  that  percolating 
waters  are  subject  to  appropriation  in  the  same  way  that  the 
waters  of  surface  streams  are.  The  legislation  governing 
appropriations  in  Idaho,  therefore,  can  be  considered  as  ex- 
tended to  percolating  waters. 

The  only  need  for  general  legislation  regarding  percolat- 
ing waters  is  a  provision  allowing  courts,  in  their  discretion, 
to  refer  cases  involving  percolating  waters  to  the  state  engi- 
neer or  water  commission  for  investigation  as  referee  or 
special  master.  Scientific  and  technical  questions,  which  arise 
in  the  determination  of  the  source  and  amount  of  percolating 
waters,  are  so  many  and  so  difficult  to  positively  answer  that 
the  ordinary  court  procedure,  necessitating  the  introduction 
of  evidence  by  expert  witnesses,  results  in  a  mass  of  data  most 
confusing.  An  office  like  that  of  the  state  engineer  or  water 
commission  can  collect  these  data  at  first  hand  and  fully  under- 
stand the  conditions  under  which  such  data  are  assembled. 
That  litigants  fully  appreciate  this  fact  is  well  illustrated  by 
a  case  pending  in  California,  brought  by  the  Alameda  County 
Water  District  against  the  Spring  Valley  Water  Company. 
The  Water  Company,  for  the  purpose  of  augmenting  its  sup- 
ply of  water  for  the  City  of  San  Francisco,  is  now  constructing 
the  Calaveras  reservoir  on  a  tributary  of  Alameda  Creek.  The 
Water  District  comprises  within  its  limits  lands  lying  on  both 
sides  of  Alameda  Creek,  in  the  so-called  Niles  Cone.  It  is 
claimed  that  the  water  bearing  strata  underlying  such  lands 
are  supplied  by  the  waters  of  Alameda  Creek,  and  that  the 
proposed  storage  by  the  Water  Company  will  substantially 
lessen  such  underground  supply  and  result  in  damage  to  the 


THE     DESIDERATUM  155 

land  owners.  Both  the  Water  Company  and  the  Water  Dis- 
trict collected  much  physical  data,  but,  in  attempting  to  effect 
a  settlement,  decided  that  the  data  were  insufficient  "for  an 
intelligent  and  fair  solution  of  all  the  questions  involved,  and 
it  is  desired  to  obtain  such  data  under  the  direction  of  some 
competent  and  disinterested  board."  The  Company  and  Dis- 
trict, therefore,  entered  into  an  agreement  dated  September 
1st,  1916,  providing  that  the  State  Water  Commission  of  Cali- 
fornia shall  direct  the  work  of  obtaining  the  necessary  phys- 
ical data  for  a  three  year  period,  and  that  the  expense  of  such 
work,  not  exceeding  $10,000  per  year,  shall  be  paid  by  the 
Water  Company.  The  agreement  further  provides  that  at  the 
end  of  the  three  year  period,  or  sooner  if  the  commission  con- 
cludes that  it  has  sufficient  data,  the  "commission  shall  pro- 
ceed in  conference  with  the  parties  to  fix  and  determine  the 
terms  and  conditions  *  *  *  upon  which  such  storage  and 
additional  diversion  may  be  made  *  *  *."  The  agreement 
further  provides  that  the  settlement  so  fixed  and  determined 
shall  be  final  and  conclusive  upon  the  parties. 

Irrigation  Versus  Navigation 

As  congress  has  the  superior  right  to  legislate  regarding 
the  navigability  of  streams  which  may  be  used  in  interstate 
commerce,  any  conflict  between  the  interests  of  irrigation  and 
navigation  rising  out  of  the  diversion  of  the  waters  of  such 
streams  can  not  be  anticipated  and  avoided  by  state  legislation. 
In  certain  parts  of  the  west,  especially  on  the  Colorado  and 
Sacramento  Rivers,  the  clash  is  probable.  As  action  by  con- 
gress in  favor  of  irrigation  would  be  difficult  to  secure  and  of 
doubtful  validity,  the  question  must  be  settled  by  the  com- 
munities involved.  The  investments  in  irrigation  works  and 
the  industries  dependent  thereon  are  increasing  each  year, 
while  other  means  for  transportation  are  leaving  little  call  for 
that  by  water. 

As  the  War  Department  in  order  to  maintain  the  naviga- 
bility of  a  river  may  stop  the  diversions  from  the  tributaries 
as  well  as  from  the  main  stream,  it  is  clear  that  in  most  cases 
the  material  wealth  of  whole  counties  might  be  jeopardized. 
It  seems  certain,  therefore,  that  public  policy  demands  diver- 
sions of  the  summer  flow  even  to  the  detriment  of  navigation, 
and  that  such  conflicts  will  be  adjusted  to  so  allow. 

Capitalization  of  Water  Rights 

As  previously  stated,  Section  20  of  the  California  water 
commission  act  forbids  the  capitalization  of  water  rights  ini- 
tiated under  the  act.  The  provision  is  not  found  in  the  other 


156  ELEMENTS      OF     WESTERN     WATER     LAW 

western  codes,  principally  for  the  reason  that  it  was  formerly 
generally  understood  that  water  rights,  at  least  for  irrigation 
purposes,  could  not  be  capitalized.  The  decision  of  the  United 
States  Supreme  Court  in  the  San  Joaquin  case  (233  U.S.  454) 
is  to  the  contrary,  however,  and  will  probably  apply  in  all 
states  where  the  state  supreme  court  has  not  decided  other- 
wise. Regardless  of  the  attitude  of  the  state  courts,  it  is  recom- 
mended as  a  precautionary  measure  that  every  western  state 
adopt  positive  legislation  forbidding  the  capitalization  of 
water  rights  initiated  after  its  passage.  The  same  action 
should  be  taken  regarding  rights  of  way  over  state  lands  and 
franchises  to  occupy  streets.  Development  should  be  stim- 
ulated in  every  practical  way  by  the  nation,  states,  cities  and 
other  political  units,  but  the  privileges  granted  should  be  so 
conditioned  that  capitalization  thereof  is  impossible. 

Legislation  Regarding  Appropriations 

Every  western  state  has  statutes  fixing  the  procedure  to 
be  followed  in  making  appropriations.  Arizona  and  Montana 
still  follow  the  practice  of  posting  notices.  Excepting  Colo- 
rado, the  remaining  irrigation  states  have  a  central  office  in 
which  applications  for  permission  to  appropriate  water  are 
filed  and  the  conditions  fixed  under  which  the  rights  may  be 
perfected.  Most  states  give  this  central  office  the  right  to 
reject  an  application  for  specified  reasons — like  lack  of  water 
supply,  interference  with  prior  rights,  or  detriment  to  the 
public  welfare.  Such  statutes  have  been  in  force  for  over 
twenty  years  and  there  are  practically  no  cases  showing  an 
abuse  of  the  power  of  rejection. 

A  number  of  states  have  the  central  office  publish  the 
application  so  that  all  interested  may  be  heard  in  regard 
thereto  before  final  action  thereon.  This  practice  has  proved 
of  great  benefit  to  both  the  old  and  the  new  appropriators. 
It  gives  present  users  an  opportunity  to  know  about  and  pro- 
test against  any  appropriation  which  might  prove  detrimental 
to  their  own,  and  it  shows  the  intending  appropriator  the  true 
situation  before  he  expends  any  money  in  construction.  Every 
state  while  following  the  old  method  had  instances  of  the 
construction  of  works  whose  operation  was  enjoined  immedi- 
ately after  completion.  The  new  method  aims  to  eliminate 
such  waste  of  time  and  money. 

It  must  be  emphasized  that  the  new  legislation  controlling 
appropriations  is  based  upon  no  new  legal  principles.  It 
simply  offers  an  improvement  in  the  details  of  administra- 
tion— just  as  a  modern  auditing  system  makes  it  possible  for 
a  business  house  to  more  easily  control  its  operations.  Under 


THE     DESIDERATUM  157 

the  new  system  the  appropriates  is  under  state  control  from 
the  initiation  to  the  completion  of  his  project.  It  is  a  control, 
however,  which  protects,  rather  than  prohibits,  bona  fide 
projects.  Under  the  old  method  of  posting  notices,  the  records 
were  useless  as  evidences  of  work  actually  done,  and  one  was 
never  certain  of  the  status  of  his  right  during  construction. 

In  those  states  having  no  special  legislation  for  the  deter- 
mination or  adjudication  of  existing  rights  to  the  stream  flow, 
the  status  of  the  various  rights  is  settled  only  by  ordinary 
court  action.  It  is,  therefore,  possible  to  have  dozens  of  law 
suits  over  water  rights  on  a  stream  without  all  of  the  water 
users  being  brought  into  any  one  of  them.  The  new  system 
provides  a  method  for  the  determination  of  all  rights  in  a 
s;ngle  proceeding.  Colorado,  Idaho,  Utah,  North  Dakota, 
South  Dakota,  Oklahoma,  New  Mexico  and  Washington  pro- 
vide for  adjudications  directly  by  the  courts,  and  Wyoming, 
Nebraska,  and  Texas  determine  rights  through  a  non-judicial 
officer  or  board.  Oregon,  Nevada,  and  California  combine  the 
two  by  providing  for  a  determination  by  a  board  which  must 
be  affirmed  or  modified  by  a  court  before  becoming  final. 

The  first  edition  of  this  book  ended  as  follows : 

"As  the  states  in  which  rights  are  determined  by  a  board 
have  secured  the  best  results,  and,  as  the  Oregon  method 
meets  the  approval  of  those  who  think  such  determination  a 
strictly  judicial  matter,  it  is  recommended  that  the  Oregon 
method  be  followed  in  the  states  not  included  in  the  enumera- 
tion above.  So  far  as  bringing  all  claimants  into  one  action 
is  concerned  many  courts  have  held  that  they  now  have  that 
power  and  have  refused  to  consider  the  merits  of  a  case  until 
all  claimants  were  made  parties.  The  newer  legislation,  there- 
fore, simply  insures  this  being  done  in  every  case." 

"Although  one  may  be  successful  in  the  ordinary  lawsuits 
regarding  water  rights  in  those  states  in  which  the  new  leg- 
islation has  not  been  adopted,  he  is  without  protection,  other 
than  further  court  action,  if  the  wrongful  diversions  continue. 
Here  again  the  abler  courts  have  taken  the  matter  into  their 
own  hands  and  have  appointed  officers  to  divide  the  waters  in 
accordance  with  the  decree  and  at  the  expense  of  the  parties 
interested.  The  new  legislation  cares  for  the  distribution  by 
dividing  the  state  into  districts  with  water  commissioners  to 
apportion  the  waters  therein  in  accordance  with  the  determin- 
ation of  rights.  The  system  was  first  introduced  in  Colorado 
in  1879  and  has  been  accepted  by  all  the  western  states  with 
the  exception  of  Arizona,  California,  Kansas,  Montana,  Texas 
and  Washington." 


158  ELEMENTS     OF     WESTERN     WATER     LAW 

"The  new  legislation  regarding  water  rights  by  appropria- 
tion effectively  provides  for  the  three  essentials :  first,  the 
determination  of  existing  rights;  second,  the  distribution  of 
water  among  those  entitled  to  its  use;  and  third,  the  control 
of  the  acquisition  of  new  rights.  It  is  working  so  well  in  the 
many  states  in  which  it  has  been  adopted  that  there  is  no  good 
reason  why  it  should  not  be  generally  accepted.  It  is  certain 
that  a  more  general  knowledge  of  its  many  good  points  would 
dispel  the  existing  prejudice  against  any  change  in  such  mat- 
ters and  bring  about  the  desideratum  in  legislation  regarding 
our  public  waters." 

The  quoted  paragraphs  were  written  five  years  ago.  Since 
then,  California,  Texas  and  Washington  have  adopted  "water 
codes,"  and  Kansas  has  legislated  regarding  new  appropria- 
tions and  has  created  a  water  commission  to  study  and  recom- 
mend water  legislation.  Only  Arizona  and  Montana  re- 
main, and  each  attempted  to  pass  new  water  laws  at  the  1917 
legislative  session.  It  is  believed  that  the  interest  is  suffi- 
ciently great  in  the  two  states  to  result  in  a  successful  issue 
in  the  near  future.  It  seems,  therefore,  that  the  goal  is  in 
sight. 


INDEX 


Abandonment  of  Water 

Rights    45 

Access,  right  of,  to  appropri- 
ate         34 

Acquirement  of  Water 

Rights 52-     80 

Acreage  irrigated  in  1909.  . .  110 
Irrigated  by  Commercial 

Enterprises 110 

Irrigated  by  Irrigation 

Districts 144 

Irrigated  by  underground 

supplies    25 

Act  of  1866 3,     96 

Act  of  1870    3 

Act  of  March  3,  1891 98 

Act  of  May  11,  1898 99 

Act  of  February  15,  1901 100 

Act  of  February  1,  1905 100 

Adams,  Frank 142 

Adjudication   of   Rights.. 53-     76 

Adverse  Use,  Title  by 48 

Against  Upper  Riparian 

Owners    49 

Alaska  Juneau  Gold  Mining 
Company    v.    Ebner    Gold 
Mining  Company   ..34,  36,     43 
Anaheim  Union  Water  Co.  v. 

Fuller 19 

Anderson  v.  Bassman 86 

Anderson  v.  Kearney .......     67 

Annual  charges  on  Appropri- 
ations         71 

Annual  charges  for  right  of 

way  permits 103 

Applications,  protest  on....     65 
Appropriation,  Doctrine 

of  1-8,  34-     44 

Beneficial  Use    42 

California  Civil  Code 6 

Definition  of   39 

Diligence   in    39 

Incomplete  41 

Legislation  regarding  ....   156 

Measure  of  the  right 42 

Navigable  waters  ........     37 

Notice  of  5,       8 

On  public  lands 34 

Principles  of .. .     43 

Proceedings  to  effect 39 

Relation,  doctrine  of 41 


Right,  of  access 34 

Surface   waters    38 

Waste  waters  38 

Waters   in  artificial  chan- 
nels      38 

Waters  of  Lakes 37 

Waters  open  to 35 

Archer  v.  Chicago  M.  &  St. 

P.  Ry.  Co 51 

Arizona,  Area  irrigated  in..  110 

Commercial  enterprises  in  110 

Notice   of  appropriation. .  80 

Riparian   doctrine 12,  18 

Artesian  Wells  31 

Artificial    Channels,    Appro- 
priation of  water  in 38 

Avery  v.  Johnson 35 

B 

Bathgate  v.   Irvine 50 

Bean  v.  Morris , .  .85,  94 

Bear  Lake  v.  Budge 64,  77 

Bear  Lake  Irrigation  Co.  v. 

Garland    36,  97 

Bergman  v.  Kearney 78 

Bien  Code  67,  75 

Bien,  Morris    67 

Bidleman  v.   Short 38 

Boehmer   v.    Big   Rock   Irri- 
gation District   19 

Boise  City  Irrigation  &  Land 

Co.    v.    Stewart 64,  78 

Bonds,  Irrigation  Districts 

139,  141 

Boquillas  Cattle  Co.  v.  Cur- 
tis   , 18 

Bower  v.  Moorman 31 

Brewer,   Justice 87 

Bridgeford  Act < 138 

Broder  v.  Natoma  Water  & 

Mining   Co 4 

Burley  v.  United  States.  134,  135 
Burr  v.  Maclay  Rancho  Wa- 
ter Co.              29 


California,    Area    in    Irriga- 
tion Districts .   144 

Commercial  enterprises  . .  110 
Contrast  of  rules  for  per- 
colating water  and  ripa- 
rian rights  32 


INDEX 


Forfeiture  in 46 

Irrigated  area  in 110 

Irrigation  Act 145 

Irrigation    Districts 

i 138,  142,  144 

Lateral  limits  of  riparian 

Rights   19 

Prescription  in  49 

Riparian  doctrine 11 

Rules    for    underground 

waters   28 

Spanish    grants,    riparian 

rights  in  21 

Statutes  governing  appro- 
priations..  .6,   8,   17,   40,     70 
Underground  waters,  rules 

for    26 

Water  right  legislation...  70 
California  Development  Co.  115 
Capitalization  of  water 

rights 155 

Carey  Act 123-  127 

Development  under 126 

State  legislation    124 

Carey,  Senator 123 

Choate,  Joseph  H 142 

Clough  v.  Wing 1 

Coffin  v.  Left  Hand  Ditch 

Co , 10,     17 

Colorado,    Carey   Act   devel- 
opment      126 

Commercial  enterprises  in  110 

Irrigated  area  in 110 

Irrigation  Districts  in.  140,  144 
Map  and  Statement  Act . .     52 

Riparian  doctrine  in 12 

Running    reservoir    water 

in  natural  streams. .  .1. .     56 
Underground  waters    ....     30 
Water  right  legislation. 52-     56 
Commercial    Irrigation    En- 
terprises     109-  120 

Classes  of Ill 

Regulation  of   114 

Conger  v.  Weaver 5,     41 

Conrow  v.  Huffine 43 

Cokinham  v.   Lewis 82 

Co-operative  Irrigation  En- 
terprises   109-  120 

Crandall  v.  Woods 27 

Crane  Falls  Power  &  Irriga- 
tion Co.  v.  Snake  River  Ir- 
rigation Co 81 

Crawford  v.  Hathway 

17,  19,  74,     77 


Definition  of  Rights 53-     76 

Departmental  regulations  on 

rights  of  way 100 

Desert  Land  Act. ,,  .18, 121-  122 


Desideratum  in  legislation 
regarding  the  public  wa- 
ters   151-  158 

DeWolf skill  v.   Smith . .  8,  38,  96 

Diligence    39 

Legal  delays,  effect  on. 40,  41 

Distribution  of  water 55-  82 

Duckworth     v.     Watsonville 

Water  &  Light  Co.  .;22,  35,  37 


Eastern  Oregon  Land  Co.  v. 
Willow  River  Land  &  Ir- 
rigation Co 16 

Eccles  v.  Willow  River  Land 

&  Irrigation  Co 31 

Eddy  v.  Simpson 6,     72 

Entryman,  Desert  Land  Act  121 

Carey  Act 125 

Reclamation  Act   130 

Escondido  Mutual  Water  Co. 

v.  Escondido   .  .1 117 

Estoppel    50 

Ex  parte  Elam 31 

Extension  Act  of  Reclama- 
tion Act  .  .  132 


Fallbrook  Irrigation  District 
v.  Bradley    142 

Farrington,  Judge   79 

Farm  Investment  Co.  v.  Car- 
penter         76 

Farmers    Irrigation    District 
v.  Frank 60 

Forest  Service   41 

Right  of  way  regulations.     99 

Forfeiture 45 

Fruitland    Irrigation    Co.    v. 
Thayer    116 


Gage  Canal   112 

Gallatin    v.    Corning    Irriga- 
tion  Co 16 

Grant    Realty    Co.    v.    Ham, 

Yearsley  and  Ryrie 40 

Gustin  v.  Harting 51 

Gutierres     v.     Albuquerque 
Land   Co 88 


H 


Half  Moon  Bay  Land  Co.  v. 

Cowell 22 

Hanson  v.  McCue 26,  28 

Hargrave  v.  Cook 50 

Hawley,  Judge 43,  49 

Heilbron  v.  Fowler  Switch 

Canal  Co 23 


INDEX 


Hoge  v,  Eaton 85 

Homstead  Act    121 

Horst  Company  v.  Tarr  Min- 
ing Co 49 

Hough  v.  Porter..  18,  37,  70,  74 

Howell  v.  Johnson 85 

Hudson    Water    Co.    v.    Mc- 

Carter    .  94 


Riparian  doctrine  in 11 

Water  right  legislation...  75 

Kansas  v.   Colorado 86 

Katz  v.  Walkinshaw..26,  29,  30 

Kidd  v.  Baird '.  72 

King  v.  Chamberlin 38 

Kinney,  C.  S 145 


Idaho,    Carey    Act    develop- 
ment     i. .   126 

Commercial  enterprises  in  110 

Irrigated  area  in 110 

Irrigation  districts  in.  140,  144 

Riparian  doctrine    12 

Underground  waters 31 

Water  right  legislation .  61-  64 
Imperial  Water  Co.  No.  5  v. 

Holabird  115 

Indeterminate  licenses    ....   101 
Incomplete  appropriations..     41 
Indian  reservation,  appropri- 
ation on 35 

Interstate     streams,     water 

rights   on    84-     95 

Inyo    Consolidated    Water 

Co.    v.   Jess 41 

Irrigated  area 110 

Irrigation  Act,  California. . .   145 
Irrigation  Districts,  area  ir- 
rigated by    144 

Bonds    139,  141 

California    irrigation    dis- 
trict act 138 

Congressional   act   of   Au- 
gust  11,    1916 148 

Constitutionality   of   acts.  142 
Early  districts  in  Califor- 
nia       142 

Elections  in   139,  141 

Entries  under  148 

Future  of  149 

Operations  under 143 

Points  of  difference  in  acts  140 

Organization  of 138,  140 

Reclamation  Service  proj- 
ects      146 

Supervision  by  state..  139,  141 
Irrigation  versus  navigation  155 
Irwin  v.  Phillips 2 


Johnson,  C.  T 69 

Jones  v.   Adams 10,     17 

Jones  v.   Conn 19 


K 


Kansas,  Area  irrigated  in..  110 
Co-operative  enterprises  in  110 


Lakes,  appropriation  of 

waters  of  ,. .     37 

Lake  Shore  Duck  Club  v. 

Lake  View  Duck  Club. ...     35 
Lateral    limits    of    riparian 

rights 19 

Leavitt  v.  Lassen  Irrigation 

Company    114 

Legislation — See  appropria- 
tion, riparian  rights,  per- 
colating waters,  water 
rights;  also  each  state. 
Legislation  regarding  inter- 
state streams  .90 

Le  Quime  v.  Chambers 31 

Limomiera  Co.    v.    Railroad 

Commission 117 

Little  Walla    Irr.    Union    v. 

Finis  Irr.  Co 152 

Longmire  v.    Yakima    High- 
lands Irr.  &  Land  Co 16 

Los  Angeles  v.  Los  Angeles     36 
Los  Angeles  v.  Pomeroy. ...     26 

Loss  of  water  rights 45-     51 

Lux  v.  Haggin 10,  17,  22,     23 

Lynch  v.  Lower  Yakima  Ir- 
rigation Co 97 

Me 

McClintock  v.  Hudson. . .  w.  .     31 
McCook  Irrigation  &  Water 

Power  Co.  v.  Burtless....   116 
McCoy  v.  Huntley 42 


M 


Marshall  v.  Niagara  Springs 
Orchard  Co 34 

Measure  of  the  right  in  ap- 
propriation    42 

Mentone  Irrigation  Co.  v. 
Redlands,  etc.  Co 23, 

Merritt  v.  Los  Angeles.....     41 

Miller  v.  Bay  Cities  Water 
Co 13,  15,  25 

Miller  &  Lux  v.  Enterprise, 
etc 153 

Miller  &  Lux  v.  Fresno 
Flume  &  Irrigation  Co...  15 

Miller  &  Lux  v.  Madera  Ca- 
nal Co 12,  15 

Monopoly  in  public  water. .  103 


INDEX 


Montana,  Area  in  irrigation 

districts    144 

Commercial  enterprises  in  110 
Carey  Act  development  . .  127 

Irrigated  area  in 110 

Notice  of  appropriation ...     81 

Riparian  doctrine    11 

Water  right  legislation..!.     80 

Montezuma    Canal    Co.    v. 
Smithville   Canal   Co 83 

Morrow,  Judge  18 

Mutual  irrigation  enterprises  112 

N 

Nampa  &  Meridian  Irr.  Dist. 
v.  Petrie  147 

Nation,   State   v.    right3    of 
way 107 

Navigable  waters,   appropri- 
ation  of    37 

Navigable    waters,    riparian 
rights  to  23 

Navigation  versus  Irrigation  155 

Nebraska,  area  in  irrigation 

districts    144 

Commercial  enterprises  in  110 

Irrigated  area  in 110 

Lateral  limits  of  riparian 

rights     19 

Riparian  doctrine  in...  11,     17 
Water  right  legislation .  59-     61 

Nevada,  Carey  Act  develop- 
ment       127 

Commercial  enterprises  in  110 

Irrigated  area  in 110 

Riparian  doctrine  in 12 

Water  right  legislation. 66-     67 

Newlands,  Senator   66 

New  Mexico,  Area  in  irriga- 
tion districts  144 

Artesian  wells    31 

Commercial  enterprises  in  110 

Irrigated  area  in 110 

Riparian  doctrine  in 12 

Water  right  legislation  in     67 

Non-use,    period    to    consti- 
tute forfeiture   45,     46 

North  Dakota,  Irrigated  area 

in    110 

Riparian  doctrine  in 11 

Water  right  legislation  in     67 


Oklahoma,  Riparian  doctrine 

in   11 

Water  right  legislation  in     67 
Ophir    Mining    Company    v. 

Carpenter 39 

Oregon,  Area  irrigated  in .  .   110 

Carey  Act  development  . .   127 

Commercial  enterprises  in  110 


Irrigation  districts  in.  140,  144 
Lateral  limits  of  riparian 

rights 19 

Riparian  doctrine  in. . 

12,   16,  18 

Water   right    legislation . .  69 

Ownership  of  water  rights. .  117 


Pacific  Livestock  Company 
v.  Cochran 78 

Pacific  Livestock  Company 
v.  Lewis  78 

Palermo  Land  &  Water  Co. 
v.  Railroad  Commission..  115 

Palmer  v.  Railroad  Commis- 
sion   72 

Pasco  Reclamation  Co.  v. 
Rankert  116 

Patrick  v.  Smith 30 

Payette-Oregon  Slope  Irr. 
Dist.  v.  Peterson 149 

Percolating  waters,  defin- 
ition       25 

Law  of 25 

Legislation   regarding    . .  .   154 
Rule  of  versus  rule  of  ri- 
parian  rights    32 

Pioneer  Irr.  Co.  v.  Board  of 
Commissioners  of  Yuma 
County,  Colo 119 

Pioneer  Irrigation  District  v. 
Wralker  149 

Power  purposes,  water 
rights  for 101 

Posting  notices  of  appropri- 
ation   6,  81 

Prescription     48 

Rights  of  way  by 51 

Prior  appropriation,  princi- 
ples of  . .; 43 

Proceedings  to  effect  appro- 
priations    39 

Prosole  v.  Steamboat  Canal 
Co 118 

Pueblo  of  Isleta  v.  Tondee.     82 

Pueblo  rights    26 


Raymond  Lumber  Company 
v.  Raymond  Light  &  Wa- 
ter Company 116 

Reasonable  diligence   39 

Reasonable  use  among  ripa- 
rian owners  22 

Reclamation  Act 128-  138 

Development  under    135 

Extension  Act  of  Aug.  13, 

1914    132 

Irrigation  districts  under.   146 


INDEX 


Judicial  construction  of. .  134 

Kansas  v.   Colorado 86 

Of  June  17,  1902 128 

Of  August  9,  1912 132 

Operation    and    mainten- 
ance under 130,  133 

Private  lands  under 130 

Water  users  associations.  131 

Regulation  of  Rates  and 
Service  102 

Relation,  doctrine  of,  in  ap- 
propriation    41 

Revocable  licenses    101 

Rejection  of  applications...     65 

Reservoir  water,  running  in 
streams  56 

Residence  requirements,  des- 
sert entries   122 

Carey  Act 125 

Reclamation  Act   130 

Right  of  access,  to  appropri- 
ate   34 

Rights    of   way   over   public 

lands 96-  108 

Departmental  regulations.   100 

Power  purposes   100 

By  prescription 51 

Rincon  Water  &  Power  Co. 
v.  Anaheim  Union  Wiater 
Co 41 

Riparian   rights  in  Western 

states    9-     24 

Abandonment  of    ........     46 

Desideratum  of   151 

Early  decisions 9 

Lateral  limits   19 

Navigable  waters 23 

Oregon  legislation.... 

69,  71,  74,     75 

Reasonable  use 22 

Restricted   to   riparian 

lands  .  .  ., 21 

States    adopting    and    re- 

•  jecting 11 

Statutory  limitations    ....     17 
Summary  of  principles...     23 
Underground  waters   and, 
compared    29 

Roberts,    Chief   Justice 82 

Rogers  v.  Overacker 49 

Ross,   Justice    11 


S 


Salt  River  project 131 

San  Joaquin  &  Kings  R.  C. 
&  I.  Co.  v.  Fresno  Flume  & 

Irrigation  Co 16 

San  Joaquin  &  Kings  R.  C. 
&  I.  Co.  v.  Stanislaus 
County  118,  156 


San  Joaquin  Light  &  Power 
Co.  v.  Railroad  Commis- 
sion    106 

Schodde  v.  Twin  Falls  Land 

&  Water  Company 152 

Shaw,  Justice 14,     27 

Shurtleff  v.  Kehrer 16 

Snyder  v.  Colorado  Gold 

Dredging  Co ( 105 

St.  Germain  Irrigating  Co.  v. 

Hawthorne  Ditch  Co... 46,     77 
Smith  Canal  v.  Colorado  Ice 

Co 30 

Smith  v.  Hawkins 47,     48 

Smith  v.  Hope  Mining  Co..     45 
Spanish    grants,     California 
riparian  rights  in........     21 

Speer  v.   Stephenson. .......     82 

South  Dakota,  Commercial 

enterprises  in  110 

Irrigated  area  in 110 

Riparian  doctrine  in 12 

Water  right  legislation ...     67 
Stanislaus   Water   Company 

v.  Bachman  114 

Starr  v.  Child  . ., 27 

State  (Washington)  v.  Supe- 
rior Court  of  Grant  County     23 
State  of  Wyoming  v.   State 

of  Colorado   91 

Statute  of  limitations 51 

Still  v.  Palouse  Irrigation  & 

Power  Co 16,     18 

Stockman  v.  Leddy 90,     94 

Subterranean  channels   25 

Sucker  Creek,  in  re 69 

Sullivan    v.    Northern    Spy 

Mining  Company  35 

Sumner  Lumber  &  Shingle 
Co.  v.  Pacific  Coast  Power 

Co 41 

Surface  waters,  appropria- 
tion of  j 38 

Swigart   v.   Baker 135 


Temple,  Justice   27 

Texas,     Commercial     enter- 
prises in  110 

Irrigated  area  in 110 

Riparian  doctrine  in 12 

Water  right  legislation ...     74 
Thayer  v.   California  Devel- 
opment Company    115 

Turley  v.  Furman 93 

Twaddle  v.  Winters 12 

U 

Underground     waters,    Law 

of  25-     33 

Rules  for,  in  California. 28,     29 


INDEX 


Comparison  with  riparian 
rights    29,     32 

Union  Mill  &   Mining  Com- 
pany v.  Dangberg. . . .  .43,    49 

Union  Mill  &  Mining  Com- 
pany  v.   Ferris 4,       9 

United  States  v.  Hanson 

128,  134 

United     States     v.    Rickey 
Land  &  Cattle  Co 97 

Utah,  Area  in  irrigation  dis- 
tricts      144 

Carey  Act  development  . .  127 
Commercial  enterprises  in  110 

Irrigated  area  in 110 

Riparian  doctrine  in 12 

Water   right   legislation..     64 

Utah  Power  &  Light  Co.  v. 
United  States  105 

Utt  v.  Frey 45 


Vanderwork   v.   Hewes 38 

Van  Sickle  v.  Haines..3,  9,  22 
Verdugo  Canyon  Water  Co. 

v.  Verdugo 51 

W 

Walbridge  v.  Robinson 92 

Washington,   Area   irrigated 

in 110 

Commercial  enterprises  in  110 

Riparian  doctrine  in .  12, 16,  18 
Underground  waters,  rules 

for     26,  30 

Water  right  legislation...  75 


Waste  waters   38 

Water  course,  definition  of.  36 
Waters  open    to    appropria- 
tion      35 

Water  power    on    navigable 

streams 107 

Water  rights,   capitalization 

of    155 

Water  rights,   on  interstate 

streams 84-  95 

Water  right  legislation.  .52-  83 
Water-users  associations  . . .  131 
Watkins    Land    Co.    v.    Cle- 
ments      20 

Wells  v.  Mantes 7,  41 

Welborn,  Judge   41 

Wheeler   v.   Northern   Colo- 
rado Irrigation  Co 117 

Wiel,  Water  Rights  in  West- 
ern States   21 

Willey  v.  Decker 84 

Willow  Creek,  in  re 78 

Wright  Act   138 

Wyoming,  Area  irrigated  in.  110 

Carey  Act  development  . .  127 

Commercial  enterprises  in  110 

Irrigation  districts  in 144 

Riparian  doctrine  in 12 

Water  right  legislation 

56-  59 

Wyoming  v.  Colorado. 91 


Young   v.   Hinderlider 82 


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